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1e50c001-b62e-4e20-ac62-aeca04e34a09 | Smith v. Alexander, et al. | N/A | 1200215 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200215
Steven C
. Smith, as conservator of the Estate of B.J., a minor v.
Elizabeth Alexander, Amanda Buchanan, and Michael Key (Appeal from
Cullman Circuit Court: CV-15-900394).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
Application Overruled. No Opinion. Bolin, J. -
Parker, C.J., and Shaw,
W
ise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 30, 2021:
Affirmed. Bolin, J. -
Shaw, W
ise, Mendheim, Stewart, and Mitchell, JJ.,
concur. Parker, C.J., concurs in part and concurs in the result. Bryan and
Sellers, JJ., concur in the result.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 30, 2021 |
91895fbf-16c4-4426-9cfa-76139af54ea1 | Ex parte Mobile Infirmary Association d/b/a J.L. Bedsole Rotary Rehabilitation Hospital and d/b/a Mobile Infirmary Medical Center. | N/A | 1200200 | Alabama | Alabama Supreme Court | Rel: September 10, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200200
_________________________
Ex parte Mobile Infirmary Association d/b/a J.L. Bedsole Rotary
Rehabilitation Hospital and d/b/a Mobile Infirmary Medical
Center
PETITION FOR WRIT OF MANDAMUS
(In re: John R. McBride
v.
J.L. Bedsole/Rotary Rehabilitation Hospital and Mobile
Infirmary Association)
(Mobile Circuit Court, CV-20-901561)
BRYAN, Justice.
Mobile Infirmary Association ("MIA"), doing business as J.L. Bedsole
Rotary Rehabilitation Hospital ("Rotary Rehab") and doing business as
1200200
Mobile Infirmary Medical Center ("Mobile Infirmary"), petitions this
Court for a writ of mandamus directing the Mobile Circuit Court to
dismiss a complaint filed by John R. McBride alleging medical
malpractice. For the reasons explained below, we grant the petition and
issue the writ.
Background
On July 22, 2020, McBride filed a complaint in the circuit court,
listing as defendants "J.L. Bedsole/Rotary Rehabilitation Hospital,"
"Mobile Infirmary Association," and fictitiously named defendants.
According to McBride's complaint, he had undergone a craniotomy,
hospitalization, and treatment at Mobile Infirmary for a subdural
hematoma he had suffered while at home. He alleged that, in early June
2018, he was transferred to Rotary Rehab "to receive skilled and
specialized nursing, medical and rehabilitative therapy." McBride further
alleged that, while he was a patient at Rotary Rehab, he "suffered a
decubitus pressure ulcer to his left and right heels, causing severe pain
and suffering, infection, hospital treatment, financial loss, emotional
distress, and eventually amputation below his left knee." McBride's
2
1200200
complaint asserted counts of negligence and wantonness against the
defendants, based on several alleged breaches of the applicable standards
of care.
MIA, in its capacity doing business as Rotary Rehab and in its
capacity doing business as Mobile Infirmary, filed a motion to dismiss
McBride's complaint,1 arguing that his claims are barred by the
limitations period set out in § 6-5-482(a), Ala. Code 1975, which provides,
in relevant part: "All actions against physicians, surgeons, dentists,
medical institutions, or other health care providers for liability, error,
mistake, or failure to cure, whether based on contract or tort, must be
commenced within two years next after the act, or omission, or failure
giving rise to the claim ...." (Emphasis added.) MIA asserted:
"2. Here, [McBride]'s Complaint ... alleges that he was
dismissed from Mobile Infirmary on June 2, 2018[,] and was
dismissed from ... Rotary Rehab on June 20, 2018.
Accordingly, the last date any claims against Mobile Infirmary
could have accrued was on June 2, 2018. The last date any
1Mobile Infirmary was not specifically named as a separate
defendant in McBride's complaint. MIA asserts that it filed the motion to
dismiss in its capacity doing business as Mobile Infirmary "as a matter of
caution." MIA's petition at 6 n.1.
3
1200200
claims against ... Rotary Rehab could have accrued was on
June 20, 2018.
"3. [McBride]'s Complaint was not filed until July 22,
2020, more than two years after the date of accrual of any
potential claims against Mobile Infirmary or ... Rotary Rehab.
Accordingly, these claims are barred pursuant to Alabama
Code [1975,] § 6-5-482."
McBride filed a response and a supplemental response to the motion
to dismiss. In summary, McBride argued that the legal injury forming the
basis of his claims was the below-the-knee amputation of his left leg,
which he contends occurred on July 23, 2018. Because he commenced this
action within two years of the occurrence of that injury, McBride argued,
his claims are not barred by § 6-5-482(a). MIA filed a reply to McBride's
responses, arguing that, as opposed to the amputation of his lower left leg,
McBride's actual legal injuries were the pressure ulcers referenced in his
complaint, which were present before July 22, 2018. Thus, MIA argued,
McBride's claims accrued more than two years before he commenced this
action on July 22, 2020, and are, therefore, barred by § 6-5-482(a).
4
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After a hearing,2 the circuit court entered an order denying MIA's
motion to dismiss on November 20, 2020. MIA timely filed this petition
for a writ of mandamus on December 29, 2020. See Rule 21, Ala. R. App.
P.
Standard of Review
" 'A writ of mandamus is an extraordinary
remedy available only when the petitioner can
demonstrate: " ' (1) a clear legal right to the order
sought; (2) an imperative duty upon the respondent
to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court.' " Ex
parte Nall, 879 So. 2d 541, 543 (Ala. 2003) (quoting
Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272
(Ala. 2001)).'
"Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016).
" 'The general rule is that, subject to certain narrow
exceptions, the denial of a motion to dismiss is not reviewable
by petition for a writ of mandamus.' Ex parte Brown, [Ms.
1190962, Jan. 22, 2021] ____ So. 3d____, ____ (Ala. 2021).
However,
2In his answer to MIA's mandamus petition, McBride asserts that
the circuit court considered oral arguments from the parties before ruling
on the motion to dismiss. McBride's answer at 2 and 7.
5
1200200
" '[t]his Court has recognized that an appeal
is an inadequate remedy in cases where it has
determined that a defendant should not have been
subjected to the inconvenience of litigation because
it was clear from the face of the complaint that the
defendant was entitled to a dismissal or to a
judgment in its favor.'
"Ex parte Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018) (citing
Ex parte Hodge, 153 So. 3d 734 (Ala. 2014), and Ex parte U.S.
Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014)). In particular,
in Ex parte Hodge, this Court permitted mandamus review of
a trial court's denial of a motion to dismiss contending that the
plaintiff's malpractice claim was barred by the four-year
statute of repose contained in § 6-5-482(a), Ala. Code 1975,
when the applicability of that statute was clear from the face
of the complaint. Cf. Ex parte Watters, 212 So. 3d at 182
(denying a mandamus petition because 'it [was] not
abundantly clear from the face of [the plaintiff's] complaint
whether the survival statute dictate[d] dismissal of the
legal-malpractice claim because the issue whether the claim
sound[ed] in tort, in contract, or in both for that matter, [was]
sharply disputed by the parties').
"With respect to evaluating a trial court's denial of a Rule
12(b)(6)[, Ala. R. Civ. P.,3] motion to dismiss,
3MIA's motion to dismiss did not specify under which subsection of
Rule 12(b), Ala. R. Civ. P., it contends a dismissal of McBride's complaint
is warranted. However, this Court has noted that the plaintiff's failure to
state a claim can be properly raised in a Rule 12(b)(6) motion to dismiss
when it is apparent from the face of the complaint that the plaintiff's
claims are barred by a statute of limitations. See Sims v. Lewis, 374 So.
2d 298, 302 (Ala. 1979)("We hold that while the defenses of laches or
6
1200200
" '[t]he appropriate standard of review ... is
whether "when the allegations of the complaint are
viewed most strongly in the pleader's favor, it
appears that the pleader could prove any set of
circumstances that would entitle [the pleader] to
relief." Nance v. Matthews, 622 So. 2d 297, 299
(Ala.
1993);
Raley
v.
Citibanc
of
Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985). This Court does not consider whether the
plaintiff will ultimately prevail, but only whether
the plaintiff may possibly prevail. Nance, 622 So.
2d at 299. A "dismissal is proper only when it
appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would
entitle the plaintiff to relief." Nance, 622 So. 2d at
299; Garrett v. Hadden, 495 So. 2d 616, 617 (Ala.
1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.
1986).'
"Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003)."
Ex parte Abbott Lab'ys, [Ms. 1191001, May 28, 2021] ____ So. 3d ____,
____ (Ala. 2021).
limitations should be presented in a pleading to a preceding pleading, both
may be properly raised via the [Rule] 12(b)(6) motion where the face of the
complaint shows that the claim is barred."). Consistent with the
foregoing, McBride also views MIA's motion to dismiss as a Rule 12(b)(6)
motion. McBride's answer at 5-6. Therefore, the standard of review used
for Rule 12(b)(6) motions is applicable in this case.
7
1200200
Analysis
MIA argues that it is clear from the face of McBride's complaint that
his cause of action accrued more than two years before he filed his
complaint on July 22, 2020, and, consequently, is barred under the two-
year limitations period imposed by § 6-5-482(a). MIA cites, among other
cases, this Court's decision in Mobile Infirmary v. Delchamps, 642 So. 2d
954 (Ala. 1994). In Delchamps, the Court stated the following general
propositions concerning the operation of the limitations period set out in
§ 6-5-482:
"The limitations period of § 6-5-482 commences with the
accrual of a cause of action. Street v. City of Anniston, 381 So.
2d 26 (Ala. 1980); Bowlin Horn v. Citizens Hosp., 425 So. 2d
1065 (Ala. 1983); Ramey v. Guyton, 394 So. 2d 2 (Ala. 1981).
A cause of action 'accrues' under § 6-5-482 when the act
complained of results in legal injury to the plaintiff. Grabert
v. Lightfoot, 571 So. 2d 293, 294 (Ala. 1990); Colburn v.
Wilson, 570 So. 2d 652, 654 (Ala. 1990). The statutory
limitations period begins to run whether or not the full amount
of damages is apparent at the time of the first legal injury.
Garrett v. Raytheon Co., 368 So. 2d 516, 518 (Ala. 1979).
When the wrongful act or omission and the resulting legal
injury do not occur simultaneously, the cause of action accrues
and the limitations period of § 6-5-482 commences when the
legal injury occurs. Moon v. Harco Drugs, Inc., 435 So. 2d 218,
8
1200200
219 (Ala. 1983); Ramey v. Guyton, 394 So. 2d 2, 4-5 (Ala.
1981)."
Delchamps, 642 So. 2d at 958 (emphasis added).
McBride's complaint lists the following injuries he allegedly suffered
"[a]s a direct and proximate result of [the defendants'] negligent [and
wanton] acts and omissions":
"a. A pressure ulcer to his left heel,
"b. Severe pain and suffering,
"c. Infection,
"d. Wound deterioration,
"e. Loss of dignity, and
"f. Amputation of his left leg below the knee."
According to McBride's complaint, he was discharged from Rotary
Rehab "[o]n June 20, 2018, ... with pressure ulcers present on both his left
and right heels. [McBride]’s left heel pressure ulcer was recorded as
unstageable with dark gray eschar and erythema and edema surrounding
the wound." His allegation is that, but for the negligent and wanton
failure by the defendants to provide him with adequate care while he was
9
1200200
a patient, he would not have suffered the injuries referenced in his
complaint.
Thus, based on the allegations set out in McBride's July 22, 2020,
complaint, it is clear that he commenced this action more than two years
after the alleged negligence and wantonness that caused the "pressure
ulcers ... on both his left and right heels" and "the dark gray eschar and
erythema and edema surrounding the" left-heel pressure ulcer. See
Delchamps, 642 So. 2d at 958. Notwithstanding the inclusion of those
injuries in his complaint, McBride does not appear to dispute in his
answer to MIA's mandamus petition that any claims predicated on those
injuries are barred by the limitations period set out in § 6-5-482(a).
However, McBride argues that his cause of action did not actually
accrue until his lower left leg was amputated. Specifically, he states:
"McBride’s injury developed on July 23, 2018, with his lower
leg amputation .... The Complaint accurately identifies
McBride’s amputation as his injury, but describes the other
factors of his medical condition in pleading the matter with
specificity, as required by the Alabama Medical Malpractice
Act. ... To affix McBride's statute of limitations to a medical
condition that preceded his actual injury would be considered
unfair to any plaintiff."
10
1200200
McBride's answer at 8-9 (emphasis added).
Thus, McBride appears to argue that the Court should view the
amputation of his lower left leg as a separate or different injury from the
"pressure ulcers ... on both his left and right heels" and "the dark gray
eschar and erythema and edema surrounding the" left-heel pressure ulcer
that were present when he was discharged from Rotary Rehab on June 20,
2018. In other words, it appears that McBride believes that the
amputation of his lower left leg constituted a separate and new cause of
action altogether. Put yet another way, McBride suggests that this case
is like McWilliams v. Union Pacific Resources Co., 569 So. 2d 702, 704
(Ala. 1990), "wherein the damage complained of occurred at a date later
than the actions of the defendants." See also Ramey v. Guyton, 394 So. 2d
2 (Ala. 1980)(holding that a plaintiff's cause of action did not accrue for
the purposes of the two-year limitations period in § 6-5-482(a) until she
suffered a stroke possibly caused by certain medication, notwithstanding
the fact that the stroke occurred almost one year after the defendant had
written the plaintiff's last prescription for the medication). He also
appears to suggest that the actual cause of his need for the lower-left-leg
11
1200200
amputation is currently unknown but can be determined after discovery.
McBride's answer at 7.
We emphasize that, at this stage of the proceedings, the applicable
standard of review required the circuit court and requires this Court to
view McBride's allegations most strongly in his favor and to consider only
whether he might possibly prevail if he can prove his allegations. See Ex
parte Abbott Lab'ys, ____ So. 3d at ____. The issue before us is not one of
proof; rather, the issue is whether the action can be maintained if
McBride's allegations are true. See id.
However, our obligation to assume the truth of McBride's allegations
likewise compels us to confront the reality that McBride's argument
essentially amounts to an invitation for pure speculation by this Court.
Specifically, to surmise, as McBride appears to suggest in his answer, that
the eventual need for the amputation of McBride's lower left leg could
have been an altogether new injury, totally unrelated to the injuries
already present on June 20, 2018, would be a supposition that is not only
absent from, but directly contrary to, McBride's actual allegations.
Moreover, such speculation would fail to provide an explanation of any
12
1200200
causal relationship between the defendants' alleged negligence and
wantonness and the amputation.
We note that McBride's complaint has not alleged that any negligent
or wanton acts or omissions by the defendants occurred after he was
discharged from Rotary Rehab on June 20, 2018. Therefore, to connect
the alleged negligence and wantonness of the defendants in failing to
properly treat McBride's pressure ulcers and related conditions to his
lower-left- leg amputation, his complaint necessarily alleges that a causal
chain exists between those conditions and the amputation. Specifically,
as McBride describes it in his complaint, his allegation is that, after his
discharge from Rotary Rehab, "[h]is left heel pressure ulcer continued to
worsen and develop infections." (Emphasis added.) If the need for the
amputation was not a consequence of deteriorating circumstances brought
on by the conditions present at the time of his discharge from Rotary
Rehab, and therefore the defendants' alleged negligence and wantonness,
the complaint is devoid of any allegation that the defendants' alleged
negligence and wantonness caused the amputation.
As MIA notes,
13
1200200
" ' "[this Court has] held that the statute begins to run
whether or not the full amount of damages is apparent at the
time of the first legal injury. In Kelly v. Shropshire, 199 Ala.
602, [604-05,] 75 So. 291, 292 (1917), the rule was stated as
follows:
" ' " 'If the act of which the injury is the
natural sequence is of itself a legal injury to
plaintiff, a completed wrong, the cause of action
accrues and the statute begins to run from the time
the act is committed, be the actual damage (then
apparent) however slight, and the statute will
operate to bar a recovery not only for the present
damages but for damages developing subsequently
and not actionable at the time of the wrong done;
for in such a case the subsequent increase in the
damages resulting gives no new cause of action.
. . . ' " ' "
Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220 (Ala. 1983)(quoting Garrett
v. Raytheon Co., 368 So. 2d 516, 519 (Ala. 1979), overruled on other
grounds, Griffin v. Unocal Corp., 990 So. 2d 291(Ala. 2008))(emphasis
added). See also Ex parte Abbott Lab'ys, ____ So. 3d at ____ (" 'The
statute of limitations begins to run when the cause of action accrues,
which this Court has held is the date the first legal injury occurs.' Ex
parte Integra LifeSciences Corp., 271 So. 3d 814, 818 (Ala. 2018). 'A cause
of action accrues as soon as the claimant is entitled to maintain an action,
14
1200200
regardless of whether the full amount of the damage is apparent at the
time of the first legal injury.' Chandiwala v. Pate Constr. Co., 889 So. 2d
540, 543 (Ala. 2004)." (Emphasis added.)).
It is clear from the face of McBride's complaint that his claims
depend upon the notion that the amputation of his lower left leg was a
"natural sequence" of the alleged negligence and wantonness of the
defendants while McBride was a patient at Rotary Rehab. Moon, 435 So.
2d at 220. As McBride phrased it in response to MIA's motion to dismiss,
his allegation is that the defendants' "neglect placed [him] on a path
toward his injury of surgical amputation."4
Because McBride's injuries, "however slight," ultimately "resulting"
in the need for the amputation were already present when he was
4The dissent contends that, in derogation of the applicable standard
of review, we have impermissibly made assumptions regarding what
caused the need for the amputation of McBride's lower left leg. We make
no such assumptions. Our review is limited only to the allegations
contained in McBride's complaint, which assert that the need for his
lower-left-leg amputation was caused by the injuries attributable to the
allegedly deficient care he received at Rotary Rehab, which McBride
asserts ceased on June 20, 2018. As noted above, the applicable standard
of review requires that we treat those allegations as true.
15
1200200
discharged from Rotary Rehab on June 20, 2018, it is likewise clear that
"the cause of action accrue[d] and the statute beg[an] to run" no later than
June 20, 2018. Id. The eventual need for an amputation, or the
"subsequent increase" in McBride's injuries, "gives no new cause of
action." Id.; see also Grabert v. Lightfoot, 571 So. 2d 293, 294 (Ala.
1990)("Certainly, Grabert was entitled to maintain an action against Dr.
Lightfoot immediately after the May 1, 1987, operation, despite the fact
that the extent of Grabert's injuries allegedly caused by Dr. Lightfoot's
failure to find or to remedy the hernia may not have been fully known
then."), and Street v. City of Anniston, 381 So. 2d 26, 31 (Ala. 1980)(noting
this Court's precedent holding that, when a legally cognizable injury
occurs immediately upon the defendant's negligence, even though "the
actual injury initially incurred was so slight that it [i]s not discovered
until years later, the cause of action accrue[s], nevertheless, at the time
of the act or omission complained of").5 Therefore, the two-year
5In his answer to MIA's mandamus petition, McBride argues that his
cause of action did not accrue until the amputation of his lower left leg on
July 23, 2018, because, he says, that was the first time he could have
recognized that his injuries were proximately caused by the defendants.
16
1200200
limitations period for McBride to commence his action imposed by § 6-5-
482(a) expired on June 20, 2020. Because McBride did not file his
McBride's answer at 10. It appears that McBride is arguing that his cause
of action did not accrue until he discovered the alleged negligence or
wantonness of the defendants. However, this Court has previously
explained that it will not apply a "discovery rule" to a statute of
limitations unless one is specifically prescribed by the legislature. See
Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898, 908 (Ala. 2010)(quoting the
appendix to Griffin v. Unocal Corp., 990 So. 2d 291, 311 (Ala. 2008)).
Section 6-5-482(a) actually represents an instance in which the legislature
has provided for such a rule, but the rule applies only in specified
circumstances. See Vann, 53 So. 3d at 908. In particular, § 6-5-482(a)
provides, in pertinent part:
"[I]f the cause of action is not discovered and could not
reasonably have been discovered within [the two-year
limitations] period, then the action may be commenced within
six months from the date of such discovery or the date of
discovery of facts which would reasonably lead to such
discovery, whichever is earlier ...."
(Emphasis added.) As MIA points out on page 12 of its reply brief, the
foregoing portion of § 6-5-482(a) has no application in this case because
McBride discovered the defendants' alleged negligence and wantonness
within the two-year limitations period set out in § 6-5-482(a). See Smith
v. Bay Minette Infirmary, 485 So. 2d 716, 717 (Ala. 1986)("It is only when
the cause of action is not discovered in time to bring it within two years
of the act or omission that the statute allows six months after discovery
as an additional period in which the action may be commenced.").
17
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complaint until July 22, 2020, this action was commenced outside the
limitations period and is, therefore, barred.
Conclusion
Based on the foregoing, we conclude that MIA has shown that the
face of McBride's complaint demonstrates that this action was brought
outside the two-year limitations period imposed by § 6-5-482(a). See Ex
parte Abbott Lab'ys, supra. Because the statutory bar is apparent from
the face of McBride's complaint, MIA has also demonstrated that an
appeal from a final judgment of the circuit court would be an inadequate
remedy for MIA under the circumstances. See id. Therefore, MIA has
demonstrated a clear legal right to an order dismissing McBride's
complaint. See id.; see also Tobiassen v. Sawyer, 904 So. 2d 258, 261 (Ala.
2004)(" '[W]hen it appears from the face of the complaint that the
plaintiff's claim is time-barred, the defendant is entitled to a dismissal
based upon the defense of the statute of limitations, without the necessity
of offering any proof.' Payton v. Monsanto Co., 801 So. 2d 829, 834 (Ala.
2001)."). Accordingly, MIA's mandamus petition is granted, and the writ
of mandamus is hereby issued directing the circuit court to vacate its
18
1200200
November 20, 2020, order denying MIA's motion to dismiss and to enter
an order granting the motion.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, and Mitchell, JJ.,
concur.
Mendheim and Stewart, JJ., dissent.
19
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MENDHEIM, Justice (dissenting).
I believe that the main opinion fails to adhere to the standard of
review applicable to this petition for the writ of mandamus, and,
therefore, I dissent. The main opinion issues the writ and directs the
Mobile Circuit Court to grant a motion to dismiss filed by Mobile
Infirmary Association, doing business as J.L. Bedsole Rotary
Rehabilitation Hospital ("Rotary Rehab") and doing business as Mobile
Infirmary Medical Center, based on the applicability of the two-year
statute of limitations provided in § 6-5-482(a), Ala. Code 1975, a part of
the Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and
§ 6-5-540 et seq., Ala. Code 1975. Our standard of review on a motion to
dismiss is as follows:
"The appropriate standard of review of a trial court's
denial of a motion to dismiss is whether 'when the allegations
of the complaint are viewed most strongly in the pleader's
favor, it appears that the pleader could prove any set of
circumstances that would entitle [the pleader] to relief.' Nance
v. Matthews, 622 So. 2d 297, 299 (Ala. 1993); Raley v. Citibanc
of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala. 1985). This
Court does not consider whether the plaintiff will ultimately
prevail, but only whether the plaintiff may possibly prevail.
Nance, 622 So. 2d at 299. A 'dismissal is proper only when it
appears beyond doubt that the plaintiff can prove no set of
20
1200200
facts in support of the claim that would entitle the plaintiff to
relief.' Nance, 622 So. 2d at 299; Garrett v. Hadden, 495 So. 2d
616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769
(Ala. 1986)."
Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala. 2003) (emphasis
added). Additionally,
" '[t]he general rule is that, subject to certain narrow
exceptions, the denial of a motion to dismiss is not reviewable
by petition for a writ of mandamus.' Ex parte Brown,
[Ms. 1190962, Jan. 22, 2021] ___ So. 3d ___, ___ (Ala. 2021).
However,
" '[t]his Court has recognized that an appeal
is an inadequate remedy in cases where it has
determined that a defendant should not have been
subjected to the inconvenience of litigation because
it was clear from the face of the complaint that the
defendant was entitled to a dismissal or to a
judgment in its favor.'
"Ex parte Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018) (citing
Ex parte Hodge, 153 So. 3d 734 (Ala. 2014), and Ex parte U.S.
Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014))."
Ex parte Abbott Lab'ys, [Ms. 1191001, May 28, 2021] ___ So. 3d ___, ___
(Ala. 2021). Thus, in a circumstance such as this one, we must be
especially cautious in how we read the plaintiff's complaint.
The pertinent portions of plaintiff John R. McBride's complaint aver:
21
1200200
"1. [McBride] brings the instant action for recovery of damages
due to nursing home negligence of Defendants, named and
fictitious. On or about June and July of 2018, while a resident
of [Rotary Rehab], Plaintiff John R. McBride suffered a
decubitus pressure ulcer to his left and right heels, causing
severe pain and suffering, infection, hospital treatment,
financial loss, emotional distress, and eventually amputation
below his left knee. The Defendants' general neglect and
failures to provide appropriate care were the direct and
proximate cause of [McBride's] injuries.
"....
"16. [McBride] was admitted to [Rotary Rehab] with several
diagnoses and medical conditions, including, but not limited to:
history of falls, history of circulatory disease, peripheral
vascular disease, diabetes, and hypertension.
"17. Specifically, John R. McBride developed medical
conditions and injuries that include, but are not limited to, the
following:
"a. Pressure ulcer to his left heel,
"b. Pressure ulcer to his right heel,
"c. Unnecessary wound treatment and therapy,
"d. Pain and suffering,
"e. Emotional distress,
"f. Amputation of his left leg below the knee, and
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"g. Loss of dignity, as indicated by John R.
McBride's lack of hygiene care, activities of daily
living care, and other issues effecting his personal
dignity.
"18. On or about June 11, 2018, Defendant Rotary Rehab's
nursing staff noted a Stage II pressure ulcer to [McBride's] left
heel, measuring 4 cm x 4 cm x 0.1 cm. [Rotary Rehab's] staff
also recorded a pressure ulcer to [McBride's] right heel.
"19. On or about June 20, 2018, [McBride] was discharged
from Defendant Rotary Rehab, with pressure ulcers present on
both his left and right heels. [McBride's] left heel pressure
ulcer was recorded as unstageable with dark gray eschar and
erythema and edema surrounding the wound. [McBride] was
instructed to follow up with outpatient wound treatment from
home.
"20. [McBride] began visits for wound treatment to his left heel
through June and July of 2018, but his medical providers were
unable to heal the subject pressure ulcer. His left heel pressure
ulcer continued to worsen and develop infections throughout
this period.
"21. On July 23, 2018, [McBride] entered Thomas Hospital
upon medical advice to undergo left leg amputation below the
knee. Medical records from [McBride's] hospital stay and
surgery indicate that [McBride's] history of circulatory
problems made it difficult or impossible to heal his left leg
pressure ulcer.
"....
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"26. As a direct and proximate result of Defendant Rotary
Rehab's negligent acts and omissions, Plaintiff John R.
McBride suffered damages including, but not limited to:
"a. A pressure ulcer to his left heel,
"b. Severe pain and suffering,
"c. Infection,
"d. Wound deterioration,
"e. Loss of dignity, and
"f. Amputation of his left leg below the knee."
What becomes immediately apparent upon reading those allegations
is that, because McBride's left leg was amputated on July 23, 2018, and
because he filed his complaint on July 22, 2020, on the face of the
complaint McBride commenced his action within two years of his leg-
amputation injury. Under our mandamus standard of review, our inquiry
clearly could end there. However, the main opinion concludes that we
must look beyond the face of that allegation because McBride's complaint
also relates that the pressure ulcer on his left heel was noted by Rotary
Rehab staff on June 11, 2018, and he was discharged from Rotary Rehab
on June 20, 2018, with that pressure ulcer still present, which would
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mean that McBride's complaint was filed slightly outside the two-year
limitations period with respect to a pressure-ulcer injury. McBride
appears to concede that point by arguing that his focus is on his leg-
amputation injury, not upon a pressure-ulcer injury. But that concession
is not enough for the main opinion to forgo further analysis because, it
says, the pressure ulcer in McBride's left leg was the first onset of injury
that eventually led to the leg amputation and, therefore, the date of
accrual of McBride's entire cause of action must be traced back the date
of the left-heel pressure ulcer.
It is certainly possible to read McBride's complaint in a way that
justifies the main opinion's conclusion, but, at this stage of the litigation,
the facts do not dictate that as the only way for the case to unfold. In
paragraph 17 of the complaint, McBride combines "medical conditions and
injuries" together in a list. That list includes, among other things, a left-
heel pressure ulcer, a right-heel pressure ulcer, and a left-leg amputation.
This means that the complaint can be read as stating that the left-heel
pressure ulcer was one medical condition McBride had, just as he had a
right-heel pressure ulcer, but that the left-leg amputation was his actual
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injury.6 Moreover, it is unclear from paragraphs 16 through 20 of the
complaint whether McBride is alleging that the pressure ulcers developed
while he was at Rotary Rehab or that he already had the pressure ulcers
when he was transferred to Rotary Rehab and Rotary Rehab's culpability
arose from the fact that its staff was unable to effectively treat the left-
heel pressure ulcer. Either way, on the face of the complaint, the left-heel
pressure ulcer can be viewed as a separate medical condition or injury, not
as the condition that led to, or caused, the left-leg amputation.
The main opinion implicitly appears to acknowledge the foregoing
possibility because it proceeds to contend that if the left-leg amputation
is considered to be a separate medical condition or injury from the left-
heel pressure ulcer, then there is no causal connection between Rotary
6It is true that, in paragraph 26 of the complaint, McBride lists the
left-heel pressure ulcer as one of the problems for which he seeks
damages, whereas he did not seek damages for the right-heel pressure
ulcer. This could be interpreted to mean that McBride pleaded the left-
heel pressure ulcer as an injury while asserting that the right-heel
pressure ulcer was just a medical condition. On the other hand, it could
also be interpreted to mean that the left-heel pressure ulcer was more
severe than the right one and that he therefore included it as a separate
injury, just as he did the left-leg amputation.
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Rehab's actions and McBride's leg-amputation injury. See ___ So. 3d at
___ (asserting that "such speculation would fail to provide an explanation
of any causal relationship between the defendants' alleged negligence and
wantonness and the amputation"). However, there are two problems with
that argument. First, a lack of any relation between the defendants'
actions and the plaintiff's claimed injury goes to a deficiency in the stated
claim, not to a deficiency based on the statute of limitations. Here, Mobile
Infirmary Association filed a motion to dismiss based on the statute of
limitations, not on a failure to state a claim, and we should not issue a
writ of mandamus directing the circuit court to grant a motion to dismiss
based on a ground not argued by the defendant to the circuit court.
Second, the main opinion assumes that there is no set of facts under which
McBride could establish a causal connection between Rotary Rehab's care
and his left-leg-amputation injury without a link to the left-heel pressure
ulcer. But there is no way the main opinion reasonably can make that
assumption because it calls for a medical conclusion at the motion-to-
dismiss stage of the litigation. As McBride notes in his brief, he also had
a right-heel pressure ulcer, but his right leg did not end up needing to be
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amputated, so it is at least possible that the left-leg pressure ulcer was not
the cause of the left-leg amputation. The fact that McBride's complaint
does not definitively explain how Rotary Rehab's care led to his left-leg
amputation does not mean there is no set of facts under which Rotary
Rehab could be responsible for the leg amputation absent attributing it to
the left-heel pressure ulcer. "In several medical-malpractice cases ..., this
Court has held that a legal injury does not necessarily occur at the same
time as the negligent act or omission causing the injury." Crosslin v.
Health Care Auth. of Huntsville, 5 So. 3d 1193, 1197 n.2 (Ala. 2008). It
is possible that Rotary Rehab's care of McBride created a need to
amputate his left leg that did not manifest until just before the
amputation surgery. McBride should be permitted to explore that
possibility through discovery given that he has alleged that Rotary Rehab
is in the causal chain that resulted in the leg amputation.
In this regard, it should be remembered what the AMLA requires a
plaintiff to include in his or her complaint. Section 6-5-551, Ala. Code
1975, states, in part:
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"The plaintiff shall include in the complaint filed in the action
a detailed specification and factual description of each act and
omission alleged by plaintiff to render the health care provider
liable to plaintiff and shall include when feasible and
ascertainable the date, time, and place of the act or acts. ...
Any complaint which fails to include such detailed
specification and factual description of each act and omission
shall be subject to dismissal for failure to state a claim upon
which relief may be granted."
The complaint is required to contain a detailed specification and a factual
description of the health-care provider's acts or omissions; it is not
required to contain a detailed explanation of the plaintiff's theory of
causation. Indeed, concerning the summary-judgment stage of medical-
malpractice litigation, this Court has stated:
"In a medical-malpractice action, the plaintiff must
present expert testimony establishing the appropriate
standard of care, the doctor's deviation from that standard,
and 'a proximate causal connection between the doctor's act or
omission constituting the breach and the injury sustained by
the plaintiff.' Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala.
1988). 'To present a jury question, the plaintiff must adduce
some evidence indicating that the alleged negligence (the
breach of the appropriate standard of care) probably caused
the injury. A mere possibility is insufficient. The evidence
produced by the plaintiff must have "selective application" to
one theory of causation.' 534 So. 2d at 1079."
29
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Rivard v. University of Alabama Health Servs. Found., P.C., 835 So. 2d
987, 988 (Ala. 2002) (emphasis added and omitted). The complaint has to
allege the defendant's actions in detail and provide a narrative that
generally connects those actions with the plaintiff's injuries. Plaintiffs in
medical-malpractice actions often wait until discovery to find a medical
expert who will narrow the possibilities "to one theory of causation."7 The
plaintiff's theory and evidence of causation is then tested at the summary-
judgment stage.
Despite the fact that McBride met the pleading requirements of
§ 6-5-551, the main opinion insists that McBride's argument that the left-
leg amputation is a separate injury from the left-heel pressure ulcer is
7With respect to the requirements of § 6-5-551, it should also be
noted that McBride listed details concerning the left-heel pressure ulcer,
including dates, in his complaint because he wanted to hold the
defendants liable for their acts or omissions concerning that condition. If
he had not included those dates even though they were available, McBride
was subject to not being able to hold the defendants accountable for the
development of that condition. However, if McBride had not been so
specific about the left-heel pressure ulcer, the defendants would not have
been able to attack McBride's complaint on statute-of-limitations grounds
with respect to the leg-amputation injury. McBride should not be
presented with such a Hobson's choice.
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purely speculative. Again, even if that is true, the lack of evidence for
causation is a deficiency properly challenged in a summary-judgment
motion, not in a motion to dismiss. The issue before us in this mandamus
petition is whether McBride commenced his action within two years of his
alleged injury, not whether McBride failed to demonstrate a specific
causal link between Rotary Rehab's care and that injury. McBride may
ultimately end up having difficulty establishing a causal link between
Rotary Rehab's care and his leg-amputation injury, but the standard at
this point is not whether McBride "will ultimately prevail, but only
whether [McBride] may possibly prevail." Lyons, 858 So. 2d at 260.
In sum, on the face of the complaint, McBride's action seeking
damages for his leg-amputation injury is not barred by the applicable
statute of limitations. To conclude otherwise, the main opinion explores
whether that alleged injury is, in fact, the first injury, and, to determine
that, it makes assumptions about the specific cause of the leg-amputation
injury. That analysis fails to view the allegations in McBride's complaint
most strongly in his favor, and it permits mandamus relief even though
it is not " 'clear from the face of the complaint that the defendant was
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entitled to a dismissal.' " Ex parte Abbott Lab'ys, ___ So. 3d at ___
(emphasis omitted). Therefore, I respectfully dissent.
Stewart, J., concurs.
32 | September 10, 2021 |
c253d44f-5fc7-4ba0-b1b1-acec21e464be | Ex parte Johnny Lee Self | N/A | 1200431 | Alabama | Alabama Supreme Court | REL: September 10, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200431
____________________
Ex parte Johnny Lee Self
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Johnny Lee Self
v.
State of Alabama)
(Jefferson Circuit Court, CC-03-1269.60 and CC-03-1270.60;
Court of Criminal Appeals, CR-19-0978)
1200431
MENDHEIM, Justice.
Johnny Lee Self petitioned this Court for a writ of certiorari to
review the Court of Criminal Appeals' decision in Self v. State (No. CR-19-
0978, Jan. 29, 2021), ___ So. 3d ___ (Ala. Crim. App. 2021) (table), a
3-2 decision affirming the Jefferson Circuit Court's summary dismissal of
Self's Rule 32, Ala. R. Crim. P., petition for postconviction relief. We
granted certiorari review to consider whether the Court of Criminal
Appeals' decision is in conflict with Barnes v. State, 708 So. 2d 217 (Ala.
Crim. App. 1997). We conclude that the Court of Criminal Appeals'
decision is in conflict with Barnes, and we reverse the Court of Criminal
Appeals' judgment.
Facts and Procedural History
In September 2003, Self pleaded guilty to two counts of first-degree
sexual abuse, violations of § 13A-6-66, Ala. Code 1975, and was sentenced
to 25 years' imprisonment; the crime of sexual abuse in the first degree is
a Class C felony. Self did not appeal his guilty-plea convictions or sentences.
2
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On November 7, 2019, Self filed a Rule 32, Ala. R. Crim. P., petition
challenging his convictions and sentences. In his petition, Self alleged
that he had been improperly sentenced to serve 25 years in prison because
the maximum sentence authorized for a Class C felony is 10 years, see
§ 13A-5-6(a)(3), Ala. Code 1975, and, Self asserted, he "was not sentenced
as a [h]abitual [o]ffender." Self also alleged "that nothing in the record
shows that his sentence was properly enhanced." Self argued that the
trial court had lacked "jurisdiction to sentence [him] or render his
sentence because [the sentence] exceeds the maximum required by law."
On April 3, 2020, the State filed a response, arguing that Self's claim is
not a jurisdictional claim and is barred by the limitations period set forth
in Rule 32.2(c), Ala. R. Crim. P.
On June 9, 2020, the circuit court summarily dismissed Self's
Rule 32 petition. The circuit court interpreted Self's claims in his Rule 32
petition as (1) a claim "that the State failed to adequately prove [Self's]
prior felony convictions that were used to enhance his sentence" and (2) a
claim "that the record does not reflect application of the Habitual Felony
Offender Act." Based on that interpretation of Self's claims, the circuit
3
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court determined that Self's claims are not jurisdictional and, thus, are
barred by the limitations period set forth in Rule 32.2(c). On June 25,
2020, Self filed a motion to alter, amend, or vacate the circuit court's
judgment, which the circuit court denied. Self appealed.
Before the Court of Criminal Appeals, Self argued that the circuit
court had erred when it summarily dismissed his illegal-sentence claim.
The Court of Criminal Appeals, in its unpublished memorandum decision,
stated:
"Self's claim, as pleaded, is a nonjurisdictional claim that is
subject to the grounds of preclusion set out in Rule 32.2, Ala.
R. Crim. P. To be sure, an allegation that a sentence exceeds
the maximum authorized by law is a jurisdictional claim. See,
e.g., Brand v. State, 93 So. 3d 985, 987-88 (Ala. Crim. App.
2011) (holding that a claim that a sentence exceeds the
maximum authorized by law is jurisdictional and, thus, not
subject to the grounds of preclusion set out in Rule 32.2, Ala.
R. Crim. P.). Similarly, a claim that a defendant is not subject
to the Habitual Felony Offender Act ('HFOA') and a claim that
the HFOA was never invoked and applied are jurisdictional
claims. See, e.g., Mosley v. State, 986 So. 2d 476, 477 (Ala.
Crim. App. 2007) (holding that a claim that a conviction for
child abuse is not subject to the HFOA is a jurisdictional
claim); and Horn v. State, 912 So. 2d 539, 543 (Ala. Crim. App.
2004) (Shaw, J., concurring specially) ('The jurisdictional issue
in Martin[ v. State, 687 So. 2d 1253 (Ala. Crim. App. 1996)], as
in this case, was whether the HFOA had been invoked and
applied to enhance the appellant's sentence.').
4
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"But Self did not allege that he is not subject to the
HFOA or that the HFOA was not invoked and applied in his
case. Rather, Self alleged that he was not sentenced as a
habitual felony offender because 'nothing in the record shows
that his sentence was properly enhanced.' (C. 43.) Self's
claim, as properly characterized by the circuit court in its
order summarily dismissing Self's petition, is nothing more
than a claim that his sentence is 'unlawful' because the record
does not affirmatively show that he was sentenced under the
HFOA. (See C. 13.) It is well settled that such claims are
nonjurisdictional. See, e.g., Murray v. State, 922 So. 2d 961,
963 (Ala. Crim. App. 2005) ('[T]o the extent that Murray is
arguing that the record does not affirmatively reflect that he
was sentenced under the HFOA, that claim also does not have
jurisdictional implications and, thus, is also procedurally
barred by Rule 32.2(a)(5).').
"Because Self's HFOA claim is nonjurisdictional and
subject to the grounds of preclusion set out in Rule 32.2, Ala.
R. Crim. P., and because he filed his Rule 32 petition well
outside the limitations period set out in Rule 32.2(c), Ala. R.
Crim. P., the circuit court did not err when it found Self's claim
to be time-barred."
Standard of Review
This Court has stated that, "when the facts are undisputed and an
appellate court is presented with pure questions of law, that court's review
in a Rule 32[, Ala. R. Crim. P.,] proceeding is de novo." Ex parte White,
792 So. 2d 1097, 1098 (Ala. 2001).
5
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Discussion
As noted above, this Court granted certiorari review to consider
whether the above-quoted portion of the Court of Criminal Appeals'
unpublished memorandum decision is in conflict with Barnes, supra. In
Barnes, a Rule 32 petitioner alleged "that he was improperly sentenced to
serve fifteen years in prison, because the maximum sentence authorized
[under the applicable statute] is 10 years ... and he was not sentenced as
a habitual offender." Barnes, 708 So. 2d at 218. The trial court
summarily dismissed the petition, concluding that it was precluded by
operation of Rule 32.2(a), Ala. R. Crim. P. On appeal, the Rule 32
petitioner argued "that his sentences exceed the maximum authorized by
law because he was not sentenced as a habitual felony offender." Barnes,
708 So. 2d at 218. The State argued that the Rule 32 petitioner's sentence
did not exceed the statutory maximum because, it said, the Rule 32
petitioner had been sentenced as a habitual felony offender. The Court of
Criminal Appeals noted, however, that there was "no indication in the
record that the provisions of the Habitual Felony Offender Act applied in
th[at] case" or that the Rule 32 petitioner had been "sentenced as a
6
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habitual offender." Id. at 218 and 219. In addressing the Rule 32
petitioner's argument on appeal, the Court of Criminal Appeals stated
that the Rule 32 petitioner "essentially challenge[d] the legality of his
sentence." Id. at 219. Noting that an illegal sentence may be challenged
at any time, the Court of Criminal Appeals concluded that the Rule 32
petitioner "ha[d] alleged facts that, if true, entitle[d] him to relief." Id.
The only fact that was in question in Barnes was whether the Rule 32
petitioner had been sentenced pursuant to the Habitual Felony Offender
Act ("HFOA"), § 13A-5-9, Ala. Code 1975. The Court of Criminal Appeals
stated that, "[i]f the [Rule 32 petitioner's] allegations [were] true, the
sentences exceeded the jurisdiction of the court and [were] therefore void."
Id.
The present case appears to be identical to Barnes. Self argued in
his Rule 32 petition that the trial court had lacked jurisdiction to render
judgment or to impose the 25-year sentence on him because, he said, he
"was not sentenced as an [h]abitual [o]ffender under the [HFOA]." Self
specifically alleged, as did the Rule 32 petitioner in Barnes, that "nothing
in the record shows that his sentence was properly enhanced." The Court
7
1200431
of Criminal Appeals appears to have isolated that last portion of Self's
argument -- that the record does not include any indication that he was
sentenced as a habitual felony offender -- to characterize his entire
argument as "nothing more than a claim that his sentence is 'unlawful'
because the record does not affirmatively show that he was sentenced
under the HFOA." In so characterizing his argument, the Court of
Criminal Appeals relied upon Murray v. State, 922 So. 2d 961 (Ala. Crim.
App. 2005), to conclude that such an argument does not raise a
jurisdictional issue. However, Murray is distinguishable from the present
case.
In Murray, a Rule 32 petitioner argued that "his sentence of life
imprisonment for [his] trafficking conviction was illegal because, he [said],
the sentencing order and the case action summary [did] not show that he
was sentenced under the Habitual Felony Offender Act ... and the State
did not present 'certified court documents' to prove his prior convictions."
Murray, 922 So. 2d at 963. The Court of Criminal Appeals stated that, "to
the extent that [the Rule 32 petitioner was] arguing that the record does
not affirmatively reflect that he was sentenced under the HFOA, that
8
1200431
claim ... [did] not have jurisdictional implications and, thus, [was] ...
procedurally barred by Rule 32.2(a)(5)." Murray, 922 So. 2d at 963. The
argument raised by the Rule 32 petitioner in Murray was related solely
to whether the record indicated that the Rule 32 petitioner had been
sentenced as a habitual felony offender; the Rule 32 petitioner in Murray
did not specifically allege that he had not been sentenced as a habitual
felony offender.
In the present case, however, Self specifically alleged, just as the
Rule 32 petitioner in Barnes did, that he had not been sentenced as a
habitual felony offender. His further assertion that nothing in the record
indicates that he had been sentenced as a habitual felony offender simply
supports his main assertion. A nearly identical argument was raised and
was considered to be jurisdictional in Coleman v. State, 927 So. 2d 883
(Ala. Crim. App. 2005), another case cited by Self. In Coleman, a Rule 32
petitioner asserted that the sentence imposed against him exceeded the
maximum authorized by law. "More specifically, [the Rule 32 petitioner]
alleged that he was sentenced without any enhancements being applied,
and, therefore, that his life sentence exceed[ed] the range of punishment
9
1200431
for attempted rape in the first degree." Coleman, 927 So. 2d at 884. The
State filed a motion to dismiss the petition, arguing, among other things,
that the Rule 32 petitioner was a habitual felony offender. The Rule 32
petitioner filed a response to the State's motion, stating " 'that there [was]
nothing in the record to indicate hi[s] being sentenced as a habitual
offender.' " Coleman, 927 So. 2d at 884. Ultimately, the circuit court in
Coleman dismissed the Rule 32 petition.
On appeal, the Court of Criminal Appeals stated:
"[The Rule 32 petitioner] asserted a facially meritorious claim,
i.e., that his sentence of life imprisonment exceeded the
maximum authorized by law for his conviction of attempted
first-degree rape -- a Class B felony -- and that he was
sentenced without the application of any enhancements.
Further, in response to the State's assertions that he was
sentenced pursuant to the Habitual Felony Offender Act
('HFOA'), [the Rule 32 petitioner] stated that the record did
not contain any indications that he was sentenced pursuant to
the HFOA and attached documents to that response which he
contend[ed] support[ed] his assertion."
Coleman, 927 So. 2d at 887. The Court of Criminal Appeals remanded the
cause to the circuit court in that case for further proceedings, stating:
"If the circuit court determines that [the Rule 32 petitioner]
was not sentenced under the HFOA and, consequently, that
his sentence exceeds the maximum authorized by law, that
10
1200431
court is authorized to resentence [the Rule 32 petitioner]
within the parameters of a conviction for a Class B felony.
Conversely, if the circuit court determines that [the Rule 32
petitioner] was properly sentenced under the HFOA, then [the
Rule 32 petitioner] is not entitled to any relief."
Coleman, 927 So. 2d at 888.
In the present case, as in Coleman and Barnes, and unlike in
Murray, Self asserted that he had not been sentenced as a habitual felony
offender. The Court of Criminal Appeals mischaracterized Self's
argument as one asserting only that the record did not indicate that he
had been sentenced as a habitual felony offender. However, in addition
to asserting that the record did not indicate that Self had been sentenced
as a habitual felony offender, Self specifically asserted that he had not
been sentenced as a habitual felony offender. Under Coleman and Barnes,
such an argument is jurisdictional, and Self made specific assertions to
support his argument. See also Adams v. State, 825 So. 2d 239 (Ala.
Crim. App. 2001) (stating that a claim in a Rule 32 petition that a
sentence is illegal because it was not entered under the HFOA is
jurisdictional and, thus, not subject to the procedural bars of Rule 32.2).
If Self is able to demonstrate that he was not sentenced as a habitual
11
1200431
felony offender, then he will be entitled to the relief he seeks. Accordingly,
Self has demonstrated that the Court of Criminal Appeals' decision is in
conflict with Barnes.
Notably, the State offers no argument concerning whether the Court
of Criminal Appeals' decision is in conflict with Barnes; in fact, the State
does not even cite Barnes in its brief to this Court. Instead, the State
urges this Court to "take this opportunity to correct its jurisprudence and
hold that an unlawful sentence does not deprive the sentencing court of
subject-matter jurisdiction." The State's brief at p. 14. This is the first
time in these proceedings that the State has raised the argument that an
illegal sentence does not raise a jurisdictional issue; we did not grant
certiorari review to consider that issue. Because of the limited scope of
our certiorari review, see Ex parte Cooper, 43 So. 3d 547, 551 (Ala. 2009)
(citing Ex parte Franklin, 502 So. 2d 828 (Ala.1987), for the principle that
this court can address only those issues that are pleaded in the petition
as grounds for certiorari review), we decline to consider at this time the
well-established principle that an allegation that a sentence exceeds the
maximum authorized by law is a jurisdictional claim. See, e.g., Rogers v.
12
1200431
State, 728 So. 2d 690, 690-91 (Ala. Crim. App. 1998) (stating that a claim
that a sentence exceeds the maximum authorized by law is jurisdictional
and, thus, not subject to the grounds of preclusion set out in Rule 32.2).
The issue was not raised until the State did so in its respondent's brief,
and this Court has not received adversarial briefing on the issue.
Conclusion
Based on the forgoing, we conclude that the Court of Criminal
Appeals' decision affirming the circuit court's summary denial of Self's
Rule 32 petition is in conflict with Barnes. Accordingly, the judgment of
the Court of Criminal Appeals is reversed; the summary denial of Self's
Rule 32 petition was improper. On remand, the Court of Criminal
Appeals shall remand this cause to the circuit court for further
proceedings consistent with Barnes. If the circuit court determines that
Self was not sentenced under the HFOA and, consequently, that his
sentence exceeds the maximum authorized by law, that court is
authorized to resentence Self within the parameters applicable to a
conviction for a Class C felony. Conversely, if the circuit court determines
13
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that Self was properly sentenced under the HFOA, then Self is not
entitled to any relief.
REVERSED AND REMANDED.
Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., concurs specially.
14
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PARKER, Chief Justice (concurring specially).
Although the main opinion remands this case "for further
proceedings consistent with Barnes [v. State, 708 So. 2d 217 (Ala. Crim.
App. 1997)]," I do not read the opinion as expressly approving the holding
of Barnes. Rather, I read the opinion as resolving the present conflict of
decisions in favor of Barnes, for purposes of this case only, solely because
Barnes is a published decision and the decision below is not.
This Court may review by certiorari a decision of one of the courts
of appeals that conflicts with one of that court's own prior decisions. Rule
39(a)(1)(D), Ala. R. App. P. In such a case of intra-appeals-court conflict,
we, as the higher court, are not bound by either of the conflicting
decisions. Moreover, even under the doctrine of horizontal stare decisis,
the appeals court is not bound by its prior decision; the court may overrule
its prior decision, see Wells v. State, 93 So. 3d 155, 166-67 (Ala. Crim.
App. 2011); Bittick v. Bittick, 297 So. 3d 397, 405 n.1 (Ala. Civ. App.
2019), either expressly or sub silentio. So, on certiorari review, nothing
entitles either conflicting decision to a presumption of correctness vis-à-vis
the other.
15
1200431
In addition, within the structure of the Alabama Unified Judicial
System, an important function of this Court is to "say what the law is,"
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), for the benefit of
lower courts, attorneys, and the public. This duty derives from our
constitutional role, as "the highest court of the state," of exercising
"general supervision and control of courts of inferior jurisdiction," Art. VI,
§ 140(a) and (b), Ala. Const. 1901 (Off. Recomp.). And certiorari review
based on an intra-appeals-court conflict affords us a key opportunity to
fulfill this role by resolving an issue on which a lower court's decisions
conflict.
For these reasons, when we grant certiorari review based on an
intra-appeals-court conflict, the matter before us for resolution is the issue
on which the decisions conflict. We may resolve the issue in favor of one
decision or the other, or we may determine that neither decision is correct
and opt for a third solution. What we may not do, in my view, is merely
determine that a conflict indeed exists and then reverse solely on that
basis without deciding the issue itself. To do so would be to avoid our duty
to say what the law is.
16
1200431
I acknowledge that there are exceptions to this obligation. First, in
some cases, the parties present no argument on the issue in conflict; they
are content to merely focus on the fact of the conflict. Without argument
from the parties, it may be prudent for this Court to simply confirm that
a conflict exists and reverse and remand for the appeals court to resolve
it upon proper argument.
Second, in some cases, the appeals court's prior decision is published
but its conflicting decision is unpublished. A court of appeals may not
overrule a published decision in an unpublished one. This is because a
court of appeals may issue an unpublished decision only when "an opinion
in the case would serve no significant precedential purpose," Rules
53(a)(1) and 54(a), and because an unpublished decision has "no
precedential value," Rules 53(d) and 54(d). Thus, when an unpublished
decision conflicts with a prior published one, this Court may reverse the
unpublished decision based solely on this principle of "publication stare
decisis" rather than on the merits of the published decision.
The present case comes within the second exception. Barnes was a
published decision, whereas the decision below was unpublished. So this
17
1200431
Court properly reverses the decision below based solely on its conflict with
Barnes. This means that this Court is neither resolving the issue raised
by the conflict nor approving Barnes. Accordingly, the Court of Criminal
Appeals remains free to reconsider Barnes in a future case.
18 | September 10, 2021 |
3f48adcb-add9-4c2c-b9b1-5970ea3d3a89 | Ex parte Austin Gage Lynn. | N/A | 1200737 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200737
Ex parte Austin Gage Lynn. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Austin Gage Lynn v. State of
Alabama) (Fayette Circuit Court: CC-21-4; Criminal Appeals :
CR-20-0266).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
90985834-30a8-4266-b806-5c84d69bc13a | Ex parte Broderick Lebrandon Chambers. | N/A | 1200675 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200675
Ex parte Broderick Lebrandon Chambers. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Broderick
Lebrandon Chambers v. State of Alabama) (Tuscaloosa Circuit Court:
CC-18-234; Criminal Appeals : CR-20-0017).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
57ecd77f-7290-459b-8582-5405b612e5aa | 623 Partners, LLC v. Bowers et al. | N/A | 1191084 | Alabama | Alabama Supreme Court | REL: September 10, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1191084
____________________
623 Partners, LLC
v.
Bart Bowers; Tabitha Adcock Bowers; the Estate of Betty
Meeks, deceased; and Dolphin Tales, LLC
Appeal from Baldwin Circuit Court
(CV-18-900577)
MITCHELL, Justice.
This case addresses fraudulent-conveyance claims that are now
moot. In an earlier action, 623 Partners, LLC, obtained a default
1191084
judgment against Bart Bowers. But 623 Partners never collected on that
judgment. About nine years after obtaining the judgment, 623 Partners
filed this case, alleging that Bart and members of his family had
orchestrated the fraudulent conveyance of a property that should be used
to pay the judgment. While this case was pending, the judgment in the
earlier action reached the 10-year mark, meaning the judgment was
presumed satisfied. 623 Partners tried but failed to revive the judgment.
The defendants in this case then moved for summary judgment on the sole
basis that 623 Partners could not enforce the judgment -- effectively
arguing that the 623 Partners' fraudulent-conveyance claims were moot.
The trial court granted that motion. Because we must presume that the
judgment against Bart and its underlying debt are satisfied, we affirm.
Facts and Procedural History
JBV Enterprises, LLC, took out a loan to develop a subdivision,
which was secured by a mortgage on real property in Baldwin County
("the subdivision property"). Bart, a principal of JBV Enterprises, jointly
owned a separate parcel of real estate in Gulf Shores ("the parcel") with
2
1191084
his wife, Tabitha Adcock Bowers. In 2008, the Bowerses conveyed the
parcel to Tabitha's mother, Betty Meeks.
A few months later, 623 Partners purchased the loan secured by the
mortgage that JBV Enterprises had obtained for the development of the
subdivision property. But that subdivision was never completed. After
JBV Enterprises defaulted on the loan and mortgage, 623 Partners
foreclosed on the subdivision property. To recover the difference between
the amount of the foreclosure sale and the remaining balance JBV
Enterprises owed, 623 Partners sued JBV Enterprises and some of its
principals, including Bart, in the Baldwin Circuit Court ("the original
action"). The trial court entered separate default judgments against Bart
and the other defendants in the original action in December 2009.
In 2017, shortly before she died, Meeks transferred the parcel to
Dolphin Tales, LLC -- an entity in which Tabitha is listed as the
"president/owner." The next year, 623 Partners brought this action
against Bart, Tabitha, Meeks's estate, and Dolphin Tales ("the
defendants"). 623 Partners alleged that the defendants had orchestrated
two fraudulent transfers of the parcel -- first from the Bowerses to Meeks,
3
1191084
then from Meeks to Dolphin Tales -- to avoid the debt Bart owed 623
Partners through the default judgment entered against him in the original
action.
The default judgments that had been entered against Bart and the
other defendants in the original action reached the 10-year mark in
December 2019. Under § 6-9-191, Ala. Code 1975, a judgment over 10
years old "must be presumed satisfied, and the burden of proving it not
satisfied is upon the plaintiff." Because over 10 years had passed since
entry of the default judgments, 623 Partners filed a motion in the original
action seeking to revive the judgments. In doing so, 623 Partners took on
the burden of proving that the judgments had not been satisfied. The trial
court in the original action determined that 623 Partners had not met its
burden and, thus, denied its motion.
After 623 Partners failed to revive the lapsed judgments in the
original action, the defendants in this case moved for summary judgment
on the fraudulent-conveyance claims against them. The defendants' only
argument was that they were entitled to summary judgment on the
fraudulent-conveyance claims because 623 Partners could no longer
4
1191084
execute on the default judgment against Bart. In effect, their argument
was that the fraudulent-conveyance claims 623 Partners brought to
attempt to satisfy the default judgment against Bart were moot because
the default judgment itself was unenforceable. The trial court granted the
defendants' motion.
623 Partners appealed the trial court's summary judgment and,
then, less than a month later, appealed the trial court's denial of its
motion to revive the default judgments in the original action. We
considered the appeal in the original action first and affirmed, without an
opinion, the trial court's denial of 623 Partners' motion to revive. See 623
Partners, LLC v. JBV Enters., LLC (No. 1200035, June 11, 2021), ___ So.
3d ___ (Ala. 2021) (table). We now consider whether the trial court
properly entered summary judgment on the fraudulent-conveyance claims
in this case.
Standard of Review
We review the trial court's summary judgment de novo. In doing so,
we apply the same standard that the trial court applied -- we must
determine " 'whether the movant has made a prima facie showing that no
5
1191084
genuine issue of material fact exists and that the movant is entitled to a
judgment as a matter of law.' " Shoals Extrusion, LLC v. Beal, 288 So. 3d
448, 450 (Ala. 2019) (citation omitted). In making that determination,
" 'we must review the evidence in the light most favorable to the
nonmovant.' " Id. (citation omitted). " 'Once the movant makes a prima
facie showing that there is no genuine issue of material fact, the burden
then shifts to the nonmovant to produce "substantial evidence" as to the
existence of a genuine issue of material fact.' " Id. at 450-51 (citation
omitted).
Analysis
This case presents a question of first impression before this Court:
whether a creditor may maintain claims under the Alabama Uniform
Fraudulent Transfer Act ("the Act"), § 8-9A-1 et seq., Ala. Code 1975,
when the debt has been reduced to a judgment and that judgment is
presumed satisfied.1 The principles set out in our caselaw, and the weight
of authority from other courts that have considered similar issues, guide
1The Legislature adopted the Act based on the Uniform Fraudulent
Transfer Act. See § 8-9A-11, Ala. Code 1975.
6
1191084
us to the answer -- 623 Partners' fraudulent-conveyance claims are moot
and cannot be considered further.
Once 10 years had passed since the entry of the default judgments
in the original action, those judgments were presumed satisfied. See §
6-9-191. This presumption "is a substantial statutory right accorded the
debtor in a stale judgment as a shield to defeat recovery until opposing
evidence is reasonably sufficient in the opinion of the court to overcome
it." Gambill v. Cassimus, 247 Ala. 176, 178, 22 So. 2d 909, 910 (1945).
Importantly, it is also " 'equivalent to direct proof of payment' " that
" 'prima facie obliterates the debt, and is conclusive in the absence of any
evidence tending to show nonpayment.' " Id. (emphasis added) (citation
omitted); see also id. at 179, 22 So. 2d at 910 (explaining that payment of
the judgment "would have completely extinguished the debt"). Put
simply, the presumption of satisfaction does not merely apply to the
judgment -- it also extends to the debt that formed the basis for the
judgment. Accordingly, the debt does not exist separate and apart from
the judgment -- satisfaction of the judgment satisfies the underlying debt
as well. Although 623 Partners attempted to revive the default
7
1191084
judgments, its efforts fell short. Thus, we presume that the debt no longer
exists.
The defendants raise an obvious question: Because we must
presume that the default judgment against Bart and the underlying debt
are satisfied, what is there to remedy? 623 Partners never squarely
addresses that question.2 Instead, 623 Partners recites some of the
remedies available to creditors in the Act and argues that those remedies
"do not rest upon the status of the certificate of judgment in the 2009 case
and should not be swept away by summary judgment that arguably relies
on said status." But 623 Partners cites no authority for that proposition.
Nor does it explain why any relief -- including its attempt to undo the
transfers of the parcel to "fully satisfy its creditor claims" against Bart --
would be appropriate when the default judgment against Bart and the
underlying debt are presumed satisfied. In short, there is no basis to
2Granted, when 623 Partners submitted its briefing in this appeal,
we had not yet affirmed the trial court's denial of 623 Partners' motion to
revive the default judgments in the original action. But that outcome
should not have been a surprise because 623 Partners filed its appeal in
the original action several months before it submitted its initial brief in
this case.
8
1191084
grant a remedy for a debt that no longer exists -- and 623 Partners offers
none.3
The cases on which 623 Partners relies likewise fail to address the
core questions before us -- why a remedy would be appropriate or how its
fraudulent-conveyance claims could remain viable. But at least five courts
in other jurisdictions that have adopted the Uniform Fraudulent Transfer
Act ("the UFTA") have concluded that fraudulent-conveyance claims
cannot proceed in circumstances similar to those in this case.4 Those
3In its reply brief, 623 Partners argues for the first time that it could
also be entitled to a remedy through the United States Bankruptcy Code.
We will not consider that argument. See Byrd v. Lamar, 846 So. 2d 334,
341 (Ala. 2002) (applying the "settled rule that this Court does not address
issues raised for the first time in a reply brief").
4See, e.g., RRR, Inc. v. Toggas, 98 F. Supp. 3d 12, 22 (D.D.C. 2015)
("[O]nce a judgment has been extinguished as a matter of law, any
fraudulent transfer action based upon that judgment is also
extinguished."); Timothy v. Pia, Anderson, Dorius, Reynard & Moss, LLC,
456 P.3d 731, 736 (Utah 2019) (holding that, once the trial court denied
the plaintiffs' motion to renew a judgment, they were "not creditors with
a claim" and thus could "no longer obtain a remedy under the UFTA,"
rendering their fraudulent-transfer claim moot); Hullett v. Cousin, 204
Ariz. 292, 297, 63 P.3d 1029, 1034 (2003) ("But while the UFTA defines a
claim broadly, such a claim must be an enforceable obligation. ...
Accordingly, a claim that is time-barred is not a 'right to payment.' "
(citation omitted)); Jahner v. Jacob, 515 N.W.2d 183, 185 and 186 (N.D.
1994) (holding that a "valid, presently enforceable debt against the
9
1191084
cases are especially relevant in light of § 8-9A-11, Ala. Code 1975, which
provides that the Act "shall be applied and construed to effectuate its
general purpose to make uniform the law with respect to the subject of
[the Act] among states enacting [statutes based on the UFTA]."
We agree with the clear majority of fellow UFTA jurisdictions that
have examined issues similar to this one. When 623 Partners commenced
its fraudulent-conveyance action in 2018, it had not yet been 10 years
since the entry of the default judgments in the original action.
Consequently, the default judgment against Bart was not presumed
satisfied at that time and there remained a live controversy -- whether the
defendants orchestrated fraudulent transfers of the parcel and, if so,
original transferor is an essential element of an action against the
transferee to set aside a fraudulent transfer" and that "failure to renew
the judgment against [the transferor] is fatal to [an] action to set aside the
fraudulent transfer"); Oregon Recovery, LLC v. Lake Forest Equities, Inc.,
229 Or. App. 120, 127, 211 P.3d 937, 942 (2009) ("[W]hen the judgments
on which the UFTA claim is based expired, plaintiffs were no longer
creditors of defendants and their claims became moot."). But see Parker
v. Livingston, 817 So. 2d 554, 562 (Miss. 2002) ("Assuming arguendo that
the Florida judgments had expired, the underlying debt remained.
Therefore it was still within the chancellor's power to entertain the
fraudulent conveyance action ....").
10
1191084
whether the transfers of the parcel should be set aside, or damages
awarded, to satisfy Bart's debt to 623 Partners. But in December 2019,
the presumption of satisfaction attached to the default judgment against
Bart and the underlying debt, rendering the parties' dispute moot because
there was no longer a debt to remedy. See Ex parte Carter, 275 So. 3d
115, 123 (Ala. 2018) (holding that, with no remedy available, ruling in the
appellant's favor "would serve no purpose" and that the matter was moot).
623 Partners attempted to revive the default judgments, but it was
unsuccessful. Thus, its fraudulent-conveyance claims remain moot, and
the trial court did not err by entering summary judgment against 623
Partners.5
5623 Partners makes no argument concerning whether it could move
a second time to revive the default judgments. Nor does it argue that it
could reassert its fraudulent-conveyance claims if a second motion to
revive were successful. Thus, we express no view concerning those
questions. See Ex parte Kelley, 296 So. 3d 822, 829 (Ala. 2019) ("[I]t is
well settled that this Court will not reverse a trial court's judgment based
on arguments not made to this Court.").
11
1191084
Conclusion
The default judgment against Bart in the original action was
presumed satisfied 10 years after it was entered, rendering 623 Partners'
fraudulent-conveyance claims moot. 623 Partners tried but failed to
revive the lapsed default judgments. Thus, the trial court did not err
when it entered summary judgment on 623 Partners' moot fraudulent-
conveyance claims.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Sellers, J., dissents.
12
1191084
SELLERS, Justice (dissenting).
I respectfully dissent. Under Alabama's statutory framework, a
judgment cannot be revived more than 20 years after the date of its entry;
thus, only after 20 years is a judgment that has not been revived
conclusively deemed satisfied. See § 6-9-190, Ala. Code 1975 ("A
judgment cannot be revived after the lapse of 20 years from its entry.").
Nonetheless, a judgment is presumed satisfied if it has not been executed
on within 10 years of its entry or if 10 years have elapsed since the date
of the last execution issued, and the burden is on the judgment creditor to
demonstrate that the judgment has not been satisfied. § 6-9-191, Ala.
Code 1975. When a judgment creditor fails to execute on a judgment
within 10 years of its entry, the judgment creditor must move for and
obtain a revival of the judgment before the expiration of the 20-year
limitations period. § 6-9-192, Ala. Code 1975. In other words, an order
granting a motion to revive a judgment filed within the 20-year period
allows a judgment creditor to avoid being cut off at 10 years by the
presumption imposed by § 6-9-191. The main opinion concludes that,
because 623 Partners, LLC, was unsuccessful in its attempt to revive the
13
1191084
lapsed default judgment against Bart Bowers entered in the original
action, it must be presumed that the judgment, as well as the underlying
debt, are satisfied, thus leaving no controversy to be resolved regarding
the fraudulent-conveyance claims asserted by 623 Partners. Specifically,
the main opinion concludes that a debt cannot exist separate and apart
from a judgment securing the debt. In reaching that conclusion, the main
opinion relies on Gambill v. Cassimus, 247 Ala. 176, 178, 22 So. 2d 909,
910 (1945), which quotes the general rule stated in 48 Corpus Juris
Payment § 200: that the presumption of payment arising from the lapse
of time prima facie obliterates the debt. However, the issue involved in
Gambill was whether the judgment creditor had met his burden of
establishing that a lapsed judgment had not been satisfied. Therefore, any
extrapolation in Gambill regarding the extinguishment of underlying
debts is merely dicta. Furthermore, the status of a debt is an evidentiary
issue involving whether the underlying obligation has or has not been
satisfied, what a creditor must show to support his or her possession of a
validly existing unpaid obligation, and what a debtor must show to
confirm payment and satisfaction of the debt. See 48 Corpus Juris
14
1191084
Payment § 199 ("The presumption of payment arising from lapse of time
is one of fact, and differs essentially from the bar of the statute of
limitations. This presumption is usually drawn from the evidence in
support of the claim, and amounts to nothing more than a rule of evidence
affecting the burden of going forward with the evidence on the issue of
payment or non-payment." (footnotes omitted)). Until the expiration of 20
years, the parties to an unrevived judgment are locked in an evidentiary
burden-of-proof battle that ends when the judgment is conclusively
deemed satisfied or when a debtor conclusively establishes satisfaction of
the debt, whichever occurs first.
There is a distinction between a debt, a judgment, and a certificate
of judgment. Even if a certificate of judgment is void, that merely makes
the creditor unsecured because the judgment lien no longer attaches to the
debtor's property. Until a judgment is conclusively deemed satisfied, the
daily nonpayment by the debtor provides a continuing basis for the
creditor to execute on the judgment by using, for instance, a writ of
garnishment. As long as the initial judgment was not entered outside the
20-year period, the underlying debt has some viability because it has not
15
1191084
been conclusively deemed satisfied. In this case, the default judgment
against Bart was entered on December 2, 2009; only after December 2,
2029 (8 more years from now) could the judgment be conclusively deemed
satisfied. Just over 10 years after the entry of the judgment, 623 Partners
filed its motion to revive the judgment. That motion was filed within the
time limits imposed by §§ 6-9-190 and 6-9-191 -- that is, after the lapse of
10 years from the entry of the judgment and before the expiration of the
20-year limitations period for reviving the judgment. Although it is true
that the trial court in the original action denied 623 Partners' motion to
revive the judgement, and that the judgment was therefore presumed
satisfied, I cannot agree that the judgment is conclusively deemed
satisfied.6 Thus, the fraudulent-transfer claims asserted by 623 Partners
6The trial court's denial of the motion to revive in the original action
does not automatically foreclose the possibility that 623 Partners could
revive the judgment at some later time within the 20-year limitations
period. Imagine a scenario in which a judgment creditor files a motion to
revive supported by evidence that it believes demonstrates that its
judgment has not been satisfied, and the judgment debtor offers no
evidence to rebut that evidence. However, the trial court is not persuaded
that the judgment creditor met its burden of proof or simply denies the
motion for procedural reasons or otherwise fails to provide a rationale for
its denial. Then, what if the judgment creditor subsequently learns that
16
1191084
should be decided and not disposed of under a theory that the certificate
of judgment expired, thereby eliminating the debt and making any
allegation of a fraudulent transfer moot. And, because the 20-year
limitations period had not expired, by moving for a summary judgment on
the fraudulent-transfer claims, the defendants failed to meet their burden
of establishing that the presumption that a judgment has been satisfied
conclusively means that the underlying debt no longer exists, thus making
the inquiry into the fraudulent transfer moot. As noted, there may be
special circumstances warranting a second attempt at reviving a judgment
that is presumed satisfied when that attempt comes within the 20-year
new or additional evidence exists to prove that the judgment had not, in
fact, been satisfied? Under such a scenario, the judgment creditor could
move to set aside the prior judgment denying the motion to revive based
on the newly discovered evidence indicating that the judgment had not
been satisfied. Consider also an abstractor searching title to a parcel of
property. If in the course of the record search the abstractor finds a
recorded judgment more than 10 years old but less than 20 years old, the
abstractor might check with the debtor to determine if the debt had been
satisfied. Should the debtor inform the abstractor that the debt is still
outstanding, the abstractor would note an exception to title and such
information could provide additional evidence to rebut the presumption
that the judgment had been satisfied, the debt canceled, and the judgment
lien invalidated.
17
1191084
limitations period. See note 6, supra. The cases cited in note 4 of the
main opinion addressed debts that were conclusively satisfied, not
presumed satisfied, and there is a difference. The cases from other
jurisdictions cited in note 4 of the main opinion discuss debts that were
"extinguished as a matter of law," "time-barred," "expired," or
"unenforceable." None of those words accurately describe the debt at issue
here, which will not be conclusively deemed satisfied for another eight
years; thus, the debt in this case remains viable. Accordingly, I would not
affirm the trial court's summary judgment on 623 Partners' fraudulent-
transfer claims on the basis that the default judgment against Bart and
the underlying debt are presumed satisfied because that presumption is
easily rebuttable and should be addressed in relation to elements
necessary to prove a fraudulent transfer. Because I would specifically
address whether the trial court erred in entering a summary judgment in
favor of the defendants on 623 Partners' fraudulent-transfer claims when
the debt 623 Partners is seeking satisfaction of can be revived for another
eight years before it is conclusively deemed satisfied, I dissent.
18 | September 10, 2021 |
2b135ea1-e868-486c-afa5-0f99bdcbaa69 | Something Extra Publishing, Inc., d/b/a Lagniappe Weekly v. Mack et al. | N/A | 1190106 | Alabama | Alabama Supreme Court | Rel: September 24, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1190106
____________________
Something Extra Publishing, Inc., d/b/a Lagniappe Weekly
v.
Huey Hoss Mack, Anthony Lowery, and Michael Gaull
Appeal from Baldwin Circuit Court
(CV-19-900262)
SHAW, Justice.1
Something Extra Publishing, Inc., d/b/a Lagniappe Weekly
("Lagniappe"), the plaintiff below, appeals from a summary judgment
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Shaw.
1190106
entered in favor of the defendants, Baldwin County Sheriff Huey Hoss
Mack, and two members of the Baldwin County Sheriff's Office, Colonel
Anthony Lowery and Lieutenant Michael Gaull ("the Sheriffs"), in this
action alleging that the Sheriffs improperly denied Lagniappe's request
for public records in violation of the Open Records Act ("the ORA"), § 36-
12-40 et seq., Ala. Code 1975. We affirm.
Facts and Procedural History
In May 2017, Corporal Matt Hunady, a deputy sheriff employed by
the Baldwin County Sheriff's Office ("the Sheriff's Office"), responded to
the scene of a single-vehicle accident where, ultimately, he fatally shot
Jonathan Victor, the driver and sole occupant of the vehicle. The incident
was apparently captured on video by various means, including by Cpl.
Hunady's bodycamera and on the cellular telephones of civilian
eyewitnesses. Following the incident, the Baldwin County Major Crimes
Unit ("the Major Crimes Unit") investigated the circumstances of the
shooting.2 In October 2017, a grand jury declined to indict Cpl. Hunady
2The Major Crimes Unit is an independent, multijurisdictional law-
enforcement agency composed of officers from local law-enforcement
2
1190106
on any criminal charge.
Thereafter, in January 2019, Jason Johnson, a reporter employed by
Lagniappe, the publisher of an independent weekly newspaper distributed
throughout Baldwin County, sent an email message to Col. Lowery that
contained the following:
"I was hoping to make a records request to the
department.
"In the past I've just emailed you and asked for
comments or to come review records, but if I was going to file
a formal records request under the [ORA], how would I go
about that?
"Is there a standard form of some type or should I just
send a written letter outlining the nature of the request?"
Col. Lowery replied to Johnson's email as follows: "There is a form to
request open records. I need to figure out where to point you. What is the
request related to?"3 In a subsequent email dated January 31, 2019,
agencies operating within Baldwin County. It was formed to investigate
officer-related shootings and capital-murder cases occurring within, and
to conduct internal investigations of law-enforcement agencies operating
within, Baldwin County.
3The record indicates that the Sheriff's Office has an established
procedure for the submission of an ORA request, which is initiated by the
submission of a completed "Open Records Request Form" available on the
3
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Johnson further explained:
"I'm trying to request the following under the [ORA]:
'All of the records related to the shooting of Jonathan Victor on
May 12, 2017, including but not limited to dash cam, body
cam, and third party video; the audio from any 911 calls or
radio communications; photographs from the scene; autopsy
records; and communications such as emails, text messages,
and other forms of messaging.'" 4
Again, Col. Lowery responded with the following:
"This is one we continually keep getting asked for. I
have included Lt. Michael Gaull in this email. We are getting
assistance from our attorney on this making sure we comply
with [the ORA]. Lt. Gaull should have more. Keep in mind
this is a [Major Crimes Unit] investigation, not ours."
Six days later, Johnson sent another email to Col. Lowery and Lt.
Gaull inquiring as to "how [he] might need to proceed with this records
request." At that time, Lt. Gaull replied as follows:
"Thank you for contacting the [Sheriff's Office] regarding
your request for public records, however, our agency is unable
to process your request at this time. Under the Code of
Sheriff's Office's public Web site that is then routed to the appropriate
internal department.
4According to Lagniappe, this particular email constituted its actual
request for public records pursuant to the ORA. It appears undisputed
that neither Johnson nor anyone else on Lagniappe's behalf ever
completed the form referenced in Col. Lowery's original response.
4
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Alabama, Section 12-21-3.1, law enforcement investigative
files are not public records .... In addition, if a court order is
granted by a judge to release[ ] the information, please direct
the order to [the Major Crimes Unit], [which] is the
investigating agency regarding this incident."
Lt. Gaull attached a copy of § 12-21-3.1, Ala. Code 1975 ("the
investigative-privilege statute"),5 to his response. There was apparently
no further communication between Lagniappe and the Sheriff's Office.
Lagniappe subsequently sued the Sheriff's Office, Col. Lowery, and
Lt. Gaull in the Baldwin Circuit Court. Lagniappe later amended its
complaint to omit the Sheriff's Office as a named defendant and to add,
instead, Sheriff Mack as a defendant. Lagniappe's complaint, which
alleged that the Sheriffs had violated the ORA by failing to produce
nonexempt public writings, sought both declaratory and injunctive relief.
After answering Lagniappe's amended complaint, the Sheriffs jointly
moved for a summary judgment. In support of that motion, the Sheriffs,
5Subsection (b) of the investigative-privilege statute provides: "Law
enforcement investigative reports and related investigative material are
not public records. Law enforcement investigative reports, records, field
notes, witness statements, and other investigative writings or recordings
are privileged communications protected from disclosure."
5
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among other arguments, disputed that Johnson's inquiry amounted to an
ORA request and argued that any request should be directed to the Major
Crimes Unit; thus, the Sheriffs asserted, Lagniappe lacked "standing" to
pursue its claim seeking equitable relief. Alternatively, the Sheriffs,
citing § 12-21-3.1(b), disputed that the identified records constituted
"public writings" subject to production under the ORA. As support for
their motion, the Sheriffs submitted copies of the emails quoted above as
well as their affidavit testimony establishing, among other details, that
the Major Crimes Unit, rather than the Sheriff's Office, had investigated
the referenced incident; that the Major Crimes Unit independently
maintained its investigative files to which the Sheriff's Office lacked
access; and the Sheriff's Office's procedure for the submission of an ORA
request.
Following additional filings and a hearing, the trial court entered a
summary judgment in favor of the Sheriffs.6 Lagniappe appeals.
Standard of Review
6The trial court's summary-judgment order did not include the legal
holdings or factual findings on which its judgment was based.
6
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"'"This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut.
Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We
apply the same standard of review as the trial
court applied. Specifically, we must determine
whether the movant has made a prima facie
showing that no genuine issue of material fact
exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R.
Civ. P.; Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In
making such a determination, we must review the
evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence of
a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer
the existence of the fact sought to be proved.' West
v. Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)."'
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
Discussion
7
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On appeal, Lagniappe raises three challenges to the trial court's
summary judgment in favor of the Sheriffs: that the trial court erred to
the extent that it might have concluded that the Sheriffs successfully
demonstrated that they did not possess responsive records; that the trial
court erred to the extent that it might have concluded that Lagniappe's
records request was improperly submitted when, Lagniappe maintains,
the Sheriffs nonetheless formally responded; and that the trial court erred
to the extent that it might have concluded that certain requested
materials were, as the Sheriffs asserted, exempt as law-enforcement
investigative reports under § 12-21-3.1(b).
Initially, this Court notes that, under other circumstances, it would
be hesitant to conclude that Lagniappe's email inquiries, which appear
merely to seek further direction as to how to proceed with a request for
records under the ORA, amounted to an actual request pursuant to the
ORA, especially when established records-request procedures are in place.
See note 3, supra. Nonetheless, because, as Lagniappe argues, the
Sheriffs treated Lagniappe's emails as an ORA records request by
formally responding, any failure by Lagniappe to properly request
8
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documents pursuant to the ORA appears to be immaterial. Similarly,
because Johnson's January 31, 2019, email clearly sought records and
information other than what might have been separately maintained by
the Major Crimes Unit, we conclude that the Sheriffs' contentions that
they lacked access to the Major Crimes Unit's investigative file was also
immaterial -- especially because the affidavits of the Sheriffs filed in
support of their motion for a summary judgment do not deny that the
Sheriff's Office possessed the requested materials.
Lagniappe contends that the "ORA requires Defendants to produce
public records in their possession." This is incorrect; the ORA states that
"[e]very citizen has a right to inspect and take a copy of any public writing
of this state, except as otherwise expressly provided by statute." Ala.
Code 1975, § 36-12-40. In addition to acknowledging that separate
statutes might provide exceptions to the ORA, § 36-12-40 goes on to state
numerous other exceptions. The Sheriffs argue, as they did in their
motion for a summary judgment, that the records requested by Lagniappe
fall under a statutory exception provided by § 12-21-3.1(b). That Code
section states: "Law enforcement investigative reports and related
9
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investigative material are not public records." (Emphasis added.) It then
goes on to state that "[l]aw enforcement investigative reports, records,
field notes, witness statements, and other investigative writings or
recordings are privileged communications protected from disclosure."
Both the term "investigative reports" and the list of "privileged
communications" seem to suggest that the exception was crafted with the
intention of protecting materials created by law-enforcement officers
during the course of a criminal investigation. See Allen v. Barksdale, 32
So. 3d 1264, 1270 (Ala. 2009) (observing "that this Court in Stone[ v.
Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala. 1981)], recognized
a pending criminal investigation as an exception to the [ORA]").7 The
7As recognized in Water Works & Sewer Board of Talladega v.
Consolidated Publishing, Inc., 892 So. 2d 859, 866 (Ala. 2004), the
judicially created exception in Stone was intended to apply to "'pending
criminal investigations.'" Similarly, although not containing the
"pending" requirement recognized by the Court in Stone, § 12-21-3.1(f)
nonetheless appears to suggest that "a criminal matter is disposed of" by
various prescribed means, including "[w]hen the prosecuting authority has
presented the matter to a grand jury and a no bill or true bill has been
returned." § 12-21-3.1(f)(1). The Sheriffs argue that, under § 12-21-3.1(b),
"certain investigative materials can remain exempt from [production
under the ORA] even after the case is closed." It is, however, unnecessary
for us to decide whether § 12-21-3.1(b) applies to only pending criminal
10
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phrase "related investigative material" that follows "[l]aw enforcement
investigative reports," however, is much broader and would encompass not
only officer work product but also any materials related to a particular
investigation. That would include items of substantive evidence that
existed before the investigation began, such as video recordings or
documentary evidence relevant to the crime being investigated.8
investigations. Specifically, we note that Lagniappe does not include,
among its various arguments on appeal, an argument that the trial court
erred in entering a summary judgment for the Sheriffs on the basis that
the requested materials are no longer exempt because they are not part
of a presently pending criminal investigation. See Tucker v.
Cullman-Jefferson Cntys. Gas Dist., 864 So. 2d 317, 319 (Ala. 2003)
(stating that issues not raised and argued in brief are waived).
8There could be various reasons for extending such broad protections
to related items of substantive evidence relevant to a pending criminal
investigation, including, among others, the possibility that premature
release of such evidence could hamper law-enforcement investigations by
alerting potential suspects and disclosing the identities of crucial
witnesses and/or victims, thereby rendering them vulnerable to influence,
threats, or retaliation. See Stone v. Consolidated Publishing Co., 404 So.
2d 678, 681 (Ala. 1981) ("Recorded information received by a public officer
in
confidence,
sensitive
personnel
records,
pending
criminal
investigations, and records the disclosure of which would be detrimental
to the best interests of the public are some of the areas which may not be
subject to public disclosure. Courts must balance the interest of the
citizens in knowing what their public officers are doing in the discharge
of public duties against the interest of the general public in having the
business of government carried on efficiently and without undue
11
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Lagniappe argues that, under the decision in Allen, supra, the
materials requested would not fall under § 12-21-3.1(b). In that case, the
Court was called on to consider whether the investigative-privilege
statute's exemption of law-enforcement investigative reports and related
material from public disclosure extended to include incident reports
prepared by the Alabama Department of Corrections ("ADOC"). As
Lagniappe notes, in rejecting ADOC's claim that the incident reports
were, in fact, covered by the investigative-privilege statute, the Court
emphasized that exceptions to production under the ORA should be
"narrowly construed" in favor of disclosure. Id. at 1271. In Allen, we
compared an "incident report," which "documents any incident -- from the
mundane to the serious," to "an investigative report ... reflect[ing] a close
examination of an incident and a systematic inquiry [that] may lead to
criminal prosecution." Id. We held that although the former would not be
exempt from production under the investigative-privilege statute, the
interference.").
12
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latter clearly were. Id.
We do not, however, read our analysis in Allen as establishing any
bright-line rule governing production under the investigative-privilege
statute that would control the outcome here. Instead, our decision in
Allen was born from a comparison of two differing types of reports and the
resulting conclusion that one was "investigative" in nature and that the
other was, to the extent that it lacked any accompanying suggestion that
the described incident was currently under or would result in a criminal
investigation, merely documentary. More importantly, in Allen, the Court
clearly was not called upon to consider the application of the investigative-
privilege statute to substantive evidentiary items relating to an actual
criminal investigation.
Here, as explained above, Lagniappe sought records, specifically
including
"[a]ll of the records related to the shooting of Jonathan Victor
..., including but not limited to dash cam, body cam, and third
party video; the audio from any 911 calls or radio
communications; photographs from the scene; autopsy records;
and communications such as emails, text messages, and other
forms of messaging."
13
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Lagniappe appears to concede that the investigative-privilege statute
applies to exempt at least some of the materials it requested. As the
Sheriffs also contended during oral argument before this Court, certain of
the requested materials are obviously privileged communications because
they constitute "investigative reports, records, field notes, [and] witness
statements" that are exempted under § 12-21-3.1(b). To the extent that
the Sheriffs also argued that the materials at issue, even if not specifically
generated by law-enforcement officers during or for the purpose of a
systematic inquiry into a criminal incident, nonetheless fall into the
broader "related investigative material" label that the legislature
purposefully designated as "not public records," we agree.
All materials requested by Lagniappe are related to the incident
regarding Cpl. Hunady, which was the subject of a criminal investigation.
The very wording of Lagniappe's request, seeking all the "records related
to the shooting," seeks such investigative material. There is no need for
affidavits or other evidence to establish what the Sheriffs possessed
because all the records that were requested would be covered under § 12-
21-3.1(b). Thus, the investigative-privilege exception applies.
14
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Lagniappe argues that "[t]he pending-criminal-investigation
exception does not apply to every single responsive record here."
Specifically, in Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala.
1981), this Court held:
"Recorded information received by a public officer in
confidence, sensitive personnel records, pending criminal
investigations, and records the disclosure of which would be
detrimental to the best interests of the public are some of the
areas which may not be subject to public disclosure. Courts
must balance the interest of the citizens in knowing what their
public officers are doing in the discharge of public duties
against the interest of the general public in having the
business of government carried on efficiently and without
undue interference."
404 So. 2d at 681.
Lagniappe contends that, "[u]nder the Stone balancing test, the
public's interest in disclosure [in this case] far outweighs any interest
surrounding the carrying out of government business." However, the
balancing test in Stone was a Court-created exception to the ORA and is
not an exception to § 12-21-3.1(b), which was enacted after Stone was
decided. Allen, 32 So. 3d at 1270 ("We are mindful that this Court in
Stone recognized a pending criminal investigation as an exception to the
15
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Open Records Act, and that in 1998 the legislature adopted § 12-21-3.1 as
a statutory exemption.").
Conclusion
Based on the foregoing, the trial court did not err in entering a
summary judgment in favor of the Sheriffs based upon that court's
application of the investigative-privilege statute. Accordingly, we affirm
that judgment.
AFFIRMED.
Bolin, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.
Shaw, J., concurs specially.
Wise and Stewart, JJ., concur in the result.
Parker, C.J., dissents.
16
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SHAW, Justice (concurring specially).
I concur in the main opinion, which I believe clarifies what Ala. Code
1975, § 12-21-3.1(b), excludes from the purview of "Open Records Act"
("the ORA"), Ala. Code 1975, § 36-12-40 et seq. The legislature has
protected sensitive records related to criminal investigations from
premature disclosure, which can have serious ramifications in bringing
offenders to justice and protecting victims. However, § 12-21-3.1(b) by no
means prevents law-enforcement departments from opening for inspection
such records when those ramifications do not exist, and I believe that our
law-enforcement officials would utilize their discretion appropriately.
Section 12-21-3.1(b) provides a narrow exception to the ORA and is
applicable in limited circumstances; its effects need not be exaggerated.
Although, as part of what has been labeled the "Open Records Act,"
§ 36-12-40 by its terms provides for the inspection of "any public writing,"
it does not provide for the inspection of "records" generally: "Every citizen
has a right to inspect and take a copy of any public writing of this state,
except as otherwise expressly provided by statute." (Emphasis added.)
See also Ala. Code 1975, § 36-12-41 ("Every public officer having the
17
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custody of a public writing which a citizen has a right to inspect is bound
to give him, on demand, a certified copy of it, on payment of the legal fees
therefor, and such copy is admissible as evidence in like cases and with
like effect as the original writing." (Emphasis added)). What constitutes
a "public writing" is not defined in the ORA. In describing the substance
of what constitutes a "public writing," this Court has stated:
"The [ORA] does not define the term 'public writing.'
However, in Stone v. Consolidated Publishing Co., 404 So. 2d
678, 681 (Ala. 1981), this Court stated with regard to the
[ORA] that a 'public writing is such a record as is reasonably
necessary to record the business and activities required to be
done or carried on by a public officer so that the status of such
business and activities can be known by [the] citizens.' "
Allen v. Barksdale, 32 So. 3d 1264, 1268 (Ala. 2009).
Not all records held by a public agency are " 'reasonably necessary
to record the business and activities' " of public officers. Id. (emphasis
omitted). Further, as the main opinion holds, to the extent that materials
record the business and activities of law-enforcement departments as part
of criminal investigations, or are relevant and/or related to criminal
investigations, they are statutorily excluded from the definition of "public
records" by § 12-21-3.1(b).
18
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As to the form of a "public writing," the language of § 36-12-40 itself,
which first appeared in the Alabama Code of 1923, states that it is a
"writing." A "writing" has been defined as "[t]he expression of ideas by
letters visible to the eye" -- "[i]n the most general sense of the word,
'writing' denotes a document, whether manuscript or printed, as opposed
to mere spoken words." Black's Law Dictionary 1235 (2d. ed. 1910).9
Subsequent amendments to what is now § 36-12-40 added references to
"records," but the language of the Code section as it now exists suggests
no change in the form of the records to which the ORA applies. Although
more recent dictionaries might include electronic audio and video
recordings under the definition of "writing," such was clearly not the case
when the predecessor to § 36-12-40 was originally enacted. As Justice
Mitchell has noted,
"[b]ecause '[w]ords change meaning over time, and often in
unpredictable ways,' it is important to give words in statutes
the meaning they had when they were adopted to avoid
9"Public records" as defined for other portions of the Code are
described as "all written, typed or printed books, papers, letters,
documents and maps. Ala. Code 1975, § 41-13-1. Like the "public writing"
referred to in § 36-12-40, those are written documents.
19
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changing what the law is. Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts, § 7, at 78
(Thomson/West 2012) (explaining the fixed-meaning canon of
interpretation) .... Accordingly, whenever we use dictionaries
to help us interpret statutes, it is critical to use dictionaries of
the proper vintage to better understand the meaning of
relevant terms at the time of their adoption."
Ex parte Tutt Real Estate, LLC, [Ms. 1190963, Mar. 26, 2021] ___ So. 3d
___, ___ (Ala. 2021) (Mitchell, J., concurring specially).
One could argue that, considering the court-provided definition of
the substance of what constitutes a "public writing," see Allen, supra,
audio and video recordings would be included in that definition, but the
statutory definition of the form of a "public writing" -- i.e., what is open to
inspection under the ORA -- excludes such recordings. It thus would
appear that audio and video recordings have never met the definition of
a "writing" for purposes of the ORA. I do not mean to suggest that we
must accept that definition of a "public writing," which, given the holding
of the main opinion, is an issue this Court has pretermitted, thus avoiding
a close review of the grammar and wording of § 36-12-40. However,
recognizing the changes in technology that have occurred over the last
century, and the means by which we today "record" information, it is
20
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incumbent upon the legislature to update the language of the ORA if it
desires to ensure records such as audio and video recordings are included
within the purview of the ORA.
I further note that, as discussed in the main opinion, there was a
formal process for requesting records from the Baldwin County Sheriff's
Office. That process was not followed in this case, but such noncompliance
was waived. If there is a clear process for making an ORA request, then
deviations from that process should be avoided. Otherwise, informal,
vague, misdirected, or unserious requests to inspect records could render
public officials subject to suits seeking declaratory or injunctive relief
under the ORA. Such requests might further result in an incomplete or
irregular record that could hamper attempts by the public to enforce the
requirements of the ORA.
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STEWART, Justice (concurring in the result).
The burden of establishing the applicability of a privilege asserted
in response to a request under the Alabama Open Records Act ("the
ORA"), § 36-12-40 et seq., Ala. Code 1975, falls on the state actors who
assert it. Chambers v. Birmingham News Co., 552 So. 2d 854, 856-87
(Ala. 1989). Moreover, exceptions to the ORA -- including exceptions
asserted under § 12-21-3.1(b), Ala. Code 1975, for "[l]aw enforcement
investigative reports and related investigative material" -- must be
narrowly construed in favor of disclosure of public records. Allen v.
Barksdale, 32 So. 3d 1264, 1274 (Ala. 2004). Consistent with the foregoing
principles, a court assessing a parties' invocation of a purported privilege
to a request under the ORA may require more that just the assertion of
the privilege itself. Stated otherwise, the mere assertion that an exception
to the ORA applies does not always, by itself, meet that burden.
To assist with judicial review of a determination regarding whether
a privilege to a request under the ORA applies, parties and trial courts
should look to the procedures available to parties involved in discovery
disputes in which a privilege is asserted, which are set forth in Rule 26(b)
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and (c), Ala. R. Civ. P. At the request of either party or on the trial court's
own initiative, those same procedures, including the production of a
privilege log, can be employed in lawsuits in which a state actor asserts
an exception to a request made to it under the ORA. In addition, the trial
court has the authority, upon request of either party, to conduct an in
camera review of the information purported to be exempt from the ORA
to determine whether the exception applies. See Ex parte May, 393 So. 2d
1006, 1007 (Ala. 1981)("[T]he judge must ultimately decide whether the
information or material sought is discoverable. If [work product or
privileged] material is sought, in camera examination of the material may
be required.").
Unfortunately, the aforementioned procedures were not invoked in
the present case, leaving this Court and the trial court with a limited
summary-judgment record consisting of three affidavits and a series of
emails, none of which provide detail on the purported application of the
law-enforcement-investigation exception to the ORA set forth in § 12-21-
3.1(b). In fact, the affidavits submitted in support of the motion for a
summary judgment barely acknowledge § 12-21-3.1(b). Instead, those
23
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affidavits appear to have been offered mostly in support of the defendants'
argument that the Baldwin County Major Crimes Unit, and not the
Baldwin County Sheriff's Office, is the entity to which Something Extra
Publishing, Inc., d/b/a Lagniappe Weekly ("Lagniappe") should have
directed its ORA request and that the Baldwin County Sheriff's Office had
specific procedures for processing ORA requests. Without more, I am
unable to conclude whether or not the law-enforcement-investigation
exception to the ORA set forth in § 12-21-3.1(b) applies in the present
case.
In my view, this case can be resolved under the well-established
standard of review applicable to summary judgments. A party seeking a
summary judgment bears the burden of establishing a prima facie case
that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. Only after the movant makes that showing
does the burden shift to the nonmovant to produce substantial evidence
of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin
Cnty., 538 So. 2d 794, 797-98 (Ala. 1989). The defendants asserted that
they were entitled to a summary judgment on the ORA request for the
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reasons they set out in their affidavits. At that point, the burden shifted
to Lagniappe to establish the existence of a genuine issue of material fact.
The record on appeal contains no such evidence produced by Lagniappe in
opposition to the defendants' summary-judgment motion. " 'If the
nonmovant cannot produce sufficient evidence to prove each element of its
claim, the movant is entitled to a summary judgment, for a trial would be
useless.' " Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala.
1999)(quoting Berner v. Caldwell, 543 So. 2d 686, 691 (Ala.
1989)(Houston, J., concurring specially)). I, therefore, would affirm the
trial court's summary judgment on the aforementioned basis. Accordingly,
I concur in the result.
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PARKER, Chief Justice (dissenting).
Today's decision works a drastic change in this Court's investigative-
privilege jurisprudence. That change is not supported by a careful
interpretation of the text of the investigative-privilege statute or a proper
application of this Court's precedent.
I. The statutory text
The investigative-privilege statute provides:
"Law
enforcement
investigative
reports
and
related
investigative material are not public records. Law enforcement
investigative reports, records, field notes, witness statements,
and other investigative writings or recordings are privileged
communications protected from disclosure."
§ 12-21-3.1(b), Ala. Code 1975. The statute's first sentence sets forth two
categories of records that are protected from disclosure: "[l]aw
enforcement investigative reports" and "related investigative material."
The main opinion focuses on the second category, so I will too.
When we interpret a short phrase like "related investigative
material," it is important to examine the meaning of each of its words
within the wider context of the statute's language. See Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 2, at
26
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56 (Thomson/West 2012) ("The words of a governing text are of paramount
concern, and what they convey, in their context, is what the text means.");
id. § 26, at 174 ("If possible, every word ... is to be given effect ....").
Because this phrase is a noun ("material") preceded by two adjectives that
modify it ("related" and "investigative"), I will examine the words in
reverse order.
"[M]aterial," in the sense used by the statute, means "[i]nformation,
ideas, data, documents, or other things that are used in reports, books,
films, studies, etc." Black's Law Dictionary 1170 (11th ed. 2019). Thus,
"material" in the statute's second category is broader than "reports" in the
first. Indeed, in the context of public records, "material" is probably as
broad as "records" itself.
However, "material" is qualified by "investigative." This adjective
means "of or concerned with investigating something." Oxford Dictionary
of English 920 (3d ed. 2010). "Investigating," in turn, is derived from the
verb "investigate," which means "to observe or study by close examination
and systematic inquiry," Merriam-Webster's Collegiate Dictionary 659
(11th ed. 2020), or, more specifically, to "carry out a systematic or formal
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inquiry to discover and examine the facts of (an incident, allegation, etc.)
so as to establish the truth," Oxford Dictionary of English 920. Thus,
"investigative material" refers to material that concerns the carrying out
of a systematic or formal inquiry into some event or situation.
Most importantly, "investigative material" is qualified by the
adjective "related." Now, "related," standing alone, can have an extremely
broad meaning. Black's defines it as "[c]onnected in some way; having
relationship to or with something else." Black's Law Dictionary 1541. But
of course all points of reality can properly be seen as connected, through
some series of links, to all other points. Thus, as one scholar put it in what
has become known as the first law of geography, "everything is related to
everything else." Waldo R. Tobler, A Computer Movie Simulating Urban
Growth in the Detroit Region, 46 Economic Geography 234, 236 (1970). Or
as the United States Supreme Court observed in a federal-preemption
case,
"one might be excused for wondering, at first blush, whether
the [statute's] words of limitation ('insofar as they ... relate') do
much limiting. If 'relate to' were taken to extend to the
furthest stretch of its indeterminacy, then for all practical
purposes pre-emption would never run its course, for '[r]eally,
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universally, relations stop nowhere []' ....
"... [A]n uncritical literalism is [little] help ... in trying to
construe 'relate to.' ... [I]nfinite relations cannot be the
measure of pre-emption ...."
New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 655-56 (1995). Without extrinsic boundaries, "the term
would stretch to the horizon and beyond." Doe v. Princess Cruise Lines,
Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011). Because of this inherent
indeterminacy, experience teaches that "related" is one of the most vague
and malleable words in the legal lexicon. By itself, it can include
everything or nothing, solely in the eye of the beholder. "Related" is thus
functionally meaningless unless it is fettered to its context. Consequently,
in discerning the meaning of a specific use of this word, examination of
context is paramount. See Empire HealthChoice Assurance, Inc. v.
McVeigh, 396 F.3d 136, 147 (2d Cir. 2005) ("[T]he precise meaning of the
vague term 'relates to' depends on the larger statutory context."); Scalia
& Garner, supra, § 24, at 167 ("Context is a primary determinant of
meaning."). So, here, the first question to ask about "related" investigative
material is: "Related to what?" The context makes the answer obvious:
29
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"[l]aw enforcement investigative reports and related investigative
material." § 12-21.3.1(b) (emphasis added). Given the sequence and syntax
of the quoted phrase, "related," even at its broadest, can only mean
"related to investigative reports." And it cannot mean "related to an
investigation," for two reasons. For one, the word "investigation" does not
occur within the preceding portion of the statute's first sentence; the
preceding noun is "reports." And second, to read "related" to mean "related
to an investigation" would cause "related" to be redundant with its sister
modifier "investigative" (which itself means "related to an investigation"),
which would be at odds with the surplusage canon of statutory
interpretation. See Scalia & Garner, supra, § 26, at 174 ("If possible, every
word and every provision is to be given effect .... None should needlessly
be given an interpretation that causes it to duplicate another provision or
to have no consequence.").
Thus far, in light of the meaning of the individual words, I have
established that "related investigative material," at its broadest, could
theoretically mean records that both (1) concern the carrying out of a
systematic or formal inquiry into some event or situation and (2) relate to
30
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an investigative report. But that's not all.
To fully examine the meaning of the phrase "related investigative
material," the full text of the investigative-privilege statute must be taken
into account. See Scalia & Garner, supra, § 24, at 167 ("Whole-Text
Canon": "The text must be construed as a whole."). Again, the statute
reads:
"Law
enforcement
investigative
reports
and
related
investigative material are not public records. Law enforcement
investigative reports, records, field notes, witness statements,
and other investigative writings or recordings are privileged
communications protected from disclosure."
§ 12-21-3.1(b). To make sense out of the statute's two sentences, they must
be read together, in harmony. See 73 Am. Jur. 2d Statutes § 125 (2012)
("It is ... a familiar policy in the construction of terms of a statute ... to
adopt that sense of the words which best harmonizes with the context.").
As noted above, the first sentence protects two categories from disclosure:
"investigative reports" and "related investigative material." The second
sentence then lists various types of protected records: "reports," "records,"
"field notes," "witness statements," and "other investigative writings or
recordings." The first type, law-enforcement investigative "reports," is
31
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synonymous with the "investigative reports" category in the first sentence.
As for the remaining types -- records, field notes, witness
statements, and other investigative writings or recordings -- they must be
understood as fitting within the second category, "related investigative
material." This is because the second sentence's list is bookended by two
modifiers: "[l]aw enforcement investigative reports, records, field notes,
witness statements, and other investigative writings or recordings."
(Emphasis added.) Under the series-qualifier canon, "[w]hen there is a
straightforward, parallel construction that involves all nouns or verbs in
a series, a prepositive or postpositive modifier normally applies to the
entire series." Scalia & Garner, supra, § 19, at 147.10 Here, the series
("reports, records, field notes, witness statements, and other") is modified
by both a prepositive modifier ("[l]aw enforcement investigative") and a
postpositive modifier ("investigative writings or recordings"). Both
modifiers contain the adjective "investigative"; therefore, "investigative"
10A prepositive modifier is "put before" the words it modifies, see
Merriam-Webster's Collegiate Dictionary 981 (11th ed. 2020) (defining
"prepositive"), whereas a postpositive modifier is " 'positioned after' what
[it] modif[ies]," see Scalia & Garner, supra, § 19, at 148.
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qualifies the whole series. (The Legislature would have conveyed the same
meaning if it had written, "[l]aw enforcement investigative reports, law
enforcement investigative records, law enforcement investigative field
notes, law enforcement investigative witness statements, and other law
enforcement
investigative
writings
or
recordings.")
Further,
"investigative" must mean the same thing in both of the statute's
sentences. See Scalia & Garner, supra, § 25, at 170 (explaining the
"presumption of consistent usage": "A word or phrase is presumed to bear
the same meaning throughout a text ...."); 73 Am. Jur. 2d Statutes § 140
(addressing "[i]dentical terms or expressions in same statute"). Thus, the
second sentence's list of types of "investigative" records (other than
reports) illustrates what the first sentence means by "related investigative
material."
Further, by illustrating that second category, the list necessarily
suggests the category's contours. Cf. Scalia & Garner, supra, § 31, at 195
("Associated words bear on one another's meaning ...."); United States v.
Williams, 553 U.S. 285, 294 (2008) ("[A] word is given more precise
content by the neighboring words with which it is associated."). What are
33
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those contours? Keeping in mind that only records that are "related" to an
investigative report are within the second category, a commonality among
the list's first three relevant types emerges. Investigative "records, field
notes, [and] witness statements" all appear to reflect law-enforcement
officers' efforts and discoveries within an investigation. That is, these
types of records are "related" to an investigative report in a particular
sense: They are records created by officers in the course of their
investigation, intermediate records that might ultimately result in a
report. Now, the fourth listed type of record, the catch-all "other
investigative writings or recordings," could conceivably be broader.
However, the ejusdem generis canon dictates that that fourth type be
construed to include only records that have the same common
characteristic as the first three. See Scalia & Garner, supra, § 32, at 199
("Where general words follow an enumeration of two or more things, they
apply only to persons or things of the same general kind or class
specifically mentioned (ejusdem generis)."). Therefore, the second
sentence's list of examples of "related investigative material" strongly
suggests that that category includes only records, created by law-
34
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enforcement officers, that reflect their efforts in an investigation. In this
way, the main opinion's initial hunch, which it immediately rejects, turns
out to have been on track: The statute "protect[s] materials created by
law-enforcement officers during the course of a criminal investigation,"
___ So. 3d at ___.
Although broader interpretations of "related investigative material"
might be plausible, the above interpretation is the most reasonable one in
light of the linguistic and syntactical relationships within the text itself.
Thankfully, however, we are not left to speculate about the viability of any
broader interpretations, because this Court's own precedent tells us what
to do next.
II. This Court's precedent on how to interpret the investigative-
privilege statute
This Court has repeatedly emphasized that exceptions to the Open
Records Act must be narrowly construed in favor of disclosure of records.
See Chambers v. Birmingham News Co., 552 So. 2d 854, 856-57 (Ala.
1989); Blankenship v. City of Hoover, 590 So. 2d 245, 248 (Ala. 1991);
Birmingham News Co. v. Muse, 638 So. 2d 853, 855 (Ala. 1994); Allen v.
35
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Barksdale, 32 So. 3d 1264, 1271, 1274 (Ala. 2009); Tennessee Valley
Printing Co. v. Health Care Auth. of Lauderdale Cnty., 61 So. 3d 1027,
1039 (Ala. 2010); Health Care Auth. for Baptist Health v. Central
Alabama Radiation Oncology, LLC, 292 So. 3d 623, 633-34 (Ala. 2019).
Indeed, the main opinion seems to acknowledge this point. See ___ So. 3d
at ___. In Allen, a division panel of this Court explained the reason for this
narrow construction:
"Citizens are entitled to information regarding the affairs
of their government. Alabama's Open Records Act first
appeared in the 1923 Code of Alabama and represents a long
history of openness. The Open Records Act is remedial and
should therefore be construed in favor of the public. ... The
exceptions to the Open Records Act should be strictly
construed, because the purpose of the Open Records Act is to
permit the examination of public writings and records."
32 So. 3d at 1274.
Also in Allen, this Court emphasized that this narrow construction
must be applied to the investigative-privilege statute. Id. at 1271. In fact,
the Court repeated the admonition three times in the same paragraph:
"[The investigative-privilege statute] is ... an exception to the
Open Records Act and thus should ... be narrowly construed.
This conclusion is in keeping with the broad general policy of
open government. The document reflecting the work of
36
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government belongs to the public, and, although exceptions to
disclosure of such documents are necessary, any exceptions
should be narrowly construed. In other words, the Open
Records Act favors disclosure, and exemptions to that Act,
including those created by statute, must be narrowly
construed."
Id. (emphasis added).
The Court then proceeded to illustrate what narrow construction of
the investigative-privilege statute looks like. In Allen, the Alabama
Department of Corrections ("ADOC") had denied requests for "incident
reports" and "investigative reports" regarding violence in certain ADOC
facilities. Id. at 1266-67. Incident reports were written by corrections
officers and could document anything that happened in a correctional
facility. Id. at 1269-71. Incident reports of serious incidents could be
forwarded to the intelligence and investigations ("I & I") division, which
would then conduct an investigation and produce an investigative report.
Id. at 1269-70.
Before analyzing whether the two types of reports were protected by
the investigative-privilege statute, the Court recognized that the statute
"exempts law-enforcement investigative reports and related material from
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public disclosure." Id. at 1271 (emphasis added). The Court then held that
investigative reports by the I & I division were protected but that incident
reports were not. Id. The Court focused on the respective functions of the
reports: I & I reports "reflect[ed] a close examination of an incident and
a systematic inquiry and [could] lead to criminal prosecution," whereas
incident reports "document[ed] any incident -- from the mundane to the
serious." Id. Inherent in that contrast was a partial clarification of what
"investigative," narrowly construed, means: Records (whether reports or
other material) that "reflect[] a close examination of an incident and a
systematic inquiry and may lead to criminal prosecution" are
investigative, but records that "document[] any incident -- from the
mundane to the serious" -- are not. Further, by holding that incident
reports were not protected, the Court necessarily concluded that incident
reports were neither "investigative reports" nor "related investigative
material."
That last point merits close reflection. The Court's conclusion that
incident reports were not "related investigative material" sheds light on
how "related" the material must be to an investigative report to qualify for
38
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protection. Incident reports that, upon forwarding, resulted in I & I
reports, would certainly have been related to those I & I reports in the
sense that the incident reports were part of the process of observation and
information collection that culminated in the I & I reports. But under
Allen, that kind of relatedness is not enough. Rather, Allen requires
something closer; how much closer Allen does not tell us, but it at least
tells us what kind of relatedness does not qualify.
To summarize, Allen gives us two valuable insights into what
"related investigative material," narrowly construed, does not include.
Material that merely documents an incident -- whether mundane or
serious -- is not included. And material that is merely part of a process of
observation and information collection, even if that process ultimately
leads to an investigative report, is not included.
Further, to return to Allen's emphatic and fundamental point, it is
not sufficient that a particular construction of "related investigative
material" be merely plausible. It must be narrow. Therefore, whatever the
range of options for construing "related investigative material," only those
options that can fairly be characterized as narrow -- consistent with
39
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Allen's illustration of narrowness -- are even possibly correct.
Putting the pieces together from the above textual and precedential
analysis, I believe that the best interpretation of "related investigative
material" is as follows. "[R]elated investigative material" includes only
records, created by law-enforcement officers, that reflect their efforts in
an investigation. It does not include records that merely document an
incident or records that are merely part of a process of observation and
information collection.
Now, applying this interpretation to the facts of this case is
complicated by the fact that the Sheriffs11 did not disclose any records, or
even whether they possessed any records, that were responsive to
Lagniappe's request. Thus, the only facts available for analysis -- and the
only facts on which the Sheriffs' motion for a summary judgment could
have been based -- are the general types of records listed in Lagniappe's
e-mail. Lagniappe requested
11Like the main opinion, I refer to as "the Sheriffs" three members
of the Baldwin County Sheriff's Office: Sheriff Huey Hoss Mack, Colonel
Anthony Lowery, and Lieutenant Michael Gaull.
40
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"[a]ll of the records related to the shooting of Jonathan Victor
on May 12, 2017, including but not limited to dash cam, body
cam, and third party video; the audio from any 911 calls or
radio communications; photographs from the scene; autopsy
records; and communications such as emails, text messages,
and other forms of messaging."
Therefore, the Sheriffs had the summary-judgment burden to show that,
as to each listed type of record, any records that would have been
responsive to that type were "related investigative material" (or
"investigative reports"). In other words, the Sheriffs had to show that all
of the listed types, on their face, consisted solely of "related investigative
material."
A casual review of the list makes obvious that the Sheriffs could not
have shown that. First, nothing about the broad category "[a]ll of the
records related to the shooting" even suggests that it contained only
officers' records reflecting their investigation -- of the shooting or of
anything else. Second, any shooting-related "dash cam, body cam, and
third party video" and "audio from any 911 calls or radio communications"
would likely have been contemporaneous recordings of events, not officers'
records reflecting their investigation. Indeed, those recordings would
41
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likely have merely documented incidents (the underlying events
themselves), precisely the kind of records that are not included in "related
investigative material." At best, those recordings would likely have been
merely part of a process of observation and information collection, also not
included. Third, "photographs from the scene" of the shooting, if taken by
officers, could have reflected their investigative efforts. That listed type
was worded broadly enough, however, that it could have included
photographs that were taken by others or were taken before the
investigation. Fourth, "autopsy records" would have qualified only to the
extent that they reflected officers' investigative efforts, such as if officers
were significantly involved with the autopsy. Notably, coroners are not
ordinarily law-enforcement officers. See §§ 36-21-40(3) and (4), 22-19-81,
Ala. Code 1975; 18 Am. Jur. 2d Coroners § 1 (2015). Fifth, the final broad
type -- shooting-related "communications such as emails, text messages,
and other forms of messaging" -- could easily have included a myriad of
communications that reflected things other than officers' investigative
efforts. Therefore, given the meager facts before the circuit court, it could
not properly have ruled that all records responsive to the request would
42
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have been "related investigative material."
III. How the main opinion errs
The main opinion functionally disregards all the principles I have
outlined above. Without any significant textual or precedential analysis,
the opinion simply concludes that the phrase "related investigative
material" "encompass[es] ... any materials related to a particular
investigation," "includ[ing] items of substantive evidence that existed
before the investigation began, such as video recordings or documentary
evidence relevant to the crime being investigated," ___ So. 3d at ___, as
well as "related items of substantive evidence relevant to a pending
criminal investigation," id. n.8. That sweeping conclusion is flawed for
several reasons.
First, the main opinion construes the word "related" in a manner
contrary to the statute's text. Specifically, the opinion treats "related" as
meaning "related to a particular investigation," id. at ___ (emphasis
added), or "related items ... relevant to a pending criminal investigation,"
id. n.8 (emphasis added). That is demonstrably incorrect. As I have shown
above, the syntax of the statute's first sentence dictates that "related"
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means related to an "investigative report[]" (emphasis added), not merely
related to an investigation.
Second, the main opinion misses the mark by concluding that
"certain
of
the
requested
materials
are
obviously
privileged
communications because they constitute 'investigative reports, records,
field notes, [and] witness statements' that are exempted under §
12-21-3.1(b)." ___ So. 3d at ___. The opinion does not tell us what "certain
... requested items" it is referring to. Indeed, we don't even know what
"materials [are] at issue," ___ So. 3d at ___, because the Sheriffs have not
even disclosed whether they have any responsive items. Apparently,
similar to my analysis above, the main opinion is attempting to link
certain types of records listed in Lagniappe's request (dash-cam, body-
cam, and third-party videos; 9-1-1-call and radio audio; crime-scene
photographs; autopsy records; and emails, text messages, and other
messages) with types of records listed in the statute's second sentence
("investigative reports, records, field notes, [and] witness statements").
Although, as I have noted above, there might be some plausible links
between the two lists, they are far short of "obvious[]." And the opinion
44
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fails to connect the dots for us, or even to tell us which dots are to be
connected.
Third, the main opinion tries to bring in public-policy concerns
through the back door. In an attempt to bolster its sweepingly broad
construction of "related investigative material" as including all pre-
investigation evidence of the crime itself, the opinion notes "the possibility
that premature release of such evidence could hamper law-enforcement
investigations by alerting potential suspects and disclosing the identities
of crucial witnesses and/or victims, thereby rendering them vulnerable to
influence, threats, or retaliation." ___ So. 3d at ___ n.8. The opinion cites
Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981), which
relied on this type of public-policy reasoning in allowing for judicially
created exceptions to the Open Records Act, including a pending-criminal-
investigation exception. But the investigative-privilege statute later
replaced that judicially created exception. See Water Works & Sewer Bd.
of Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 865-66 (Ala.
2004). Thus, the static text of the statute now binds us, regardless of
whether it comports with our dynamic views of public policy. Cf. Health
45
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Care Auth. for Baptist Health v. Central Alabama Radiation Oncology,
LLC, 292 So. 3d 623, 636 (Ala. 2019) ("We will not curtail the application
of the ... language of the [Open Records Act] based on a vague notion that
a party's request violates the spirit of the [Act]."). We must interpret --
guided by this Court's soundly reasoned precedent -- what the Legislature
has said, not substitute what we would have said.12
Fourth, the main opinion sweeps into the protection of "related
investigative material," "items of substantive evidence that existed before
12As for the ability of courts to create exceptions to the Open Records
Act based on public policy, the Act provides: "Every citizen has a right to
inspect and take a copy of any public writing of this state, except as
otherwise expressly provided by statute." § 36-12-40 (emphasis added).
One would think that that language precludes judicially created
exceptions, but his Court has held that the Act does not, see Stone, 404 So.
2d at 681; Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala.
1989); Water Works, 892 So. 2d at 865-66. Nevertheless, that point is now
moot because the Act itself now effectively allows judicially created
exceptions, see § 36-12-40 (as amended in 2004) ("[R]ecords the disclosure
of which would otherwise be detrimental to the best interests of the public
shall be exempted from this section." (enacting almost verbatim Stone's
catch-all language in its list of exceptions, see 404 So. 2d at 681)). But the
Sheriffs have not traveled under that part of the Act, nor have they
argued that the 2004 amendment resurrected any part of Stone's pending-
criminal-investigation exception that had been supplanted by the
investigative-privilege statute.
46
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the investigation began, such as video recordings or documentary evidence
relevant to the crime being investigated." ___ So. 3d at ___. Inclusion of
those items is inconsistent with a careful application of Allen. Items of
evidence created before an investigation began are related to an
investigative report only in the loosest sense. And they are precisely the
kind of items that Allen excludes from the protection of the statute. Under
Allen, records that merely document an incident -- which is what pre-
investigation video recordings and "documentary evidence relevant to the
crime" do -- are not protected. Likewise, under Allen, records are not
protected if they are merely part of a process of observation and
information collection, even if that process ultimately leads to an
investigation. Items of pre-investigation substantive evidence are, at best,
part of such a process. More likely, they are simply items that directly
evidence the underlying events of the crime. And if evidentiary items
created in the pre-investigation observation-and-collection process are not
protected under Allen, then a fortiori items created even before that
process are not protected.
Fifth, the main opinion tries to brush aside Allen, the seminal case
47
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on this statute, with the distinction that, "in Allen, the Court clearly was
not called upon to consider the application of the investigative-privilege
statute to substantive evidentiary items relating to an actual criminal
investigation." ___ So. 3d at ___. It is not clear why that factual distinction
makes a legal difference, and the opinion does not favor us with an
explanation. Perhaps it is that pre-investigation items of substantive
evidence are more "related" to an investigation than Allen's pre-
investigation incident reports were? If so, that cannot be a correct
application of the statute. As I have shown above, (1) "related" means
related to an investigative report, not merely an investigation, and (2)
underlying substantive evidence is even less directly related to
investigative reports than the Allen incident reports were. Indeed, the
main opinion itself highlights that second point when it states, "All
materials requested by Lagniappe are related to the [shooting] incident
..., which was the subject of a criminal investigation," ___ So. 3d at ___.
That means that any items of substantive evidence were three steps
removed from any investigative report: The items were related to the
incident, which was the subject of an investigation, which (presumably)
48
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was the subject of a report.
Finally and most importantly, the main opinion openly ignores this
Court's strong admonition in Allen that the investigative-privilege statute
must be narrowly construed. Although the main opinion pays passing lip
service to that directive, see ___ So. 3d at ___, the opinion repeatedly
refers to the statute's "related investigative material" category as "broad,"
"broader," or "much broader," ___ So. 3d at ___ & n.8, ___. And those
words are not vain utterances; they describe exactly what the opinion does
when it drastically expands "related investigative material" to exempt
virtually all evidence in the hands of law-enforcement agencies. Ponder
the scope of today's decision: The statute will now hide from the public eye
"any materials related to a particular investigation"; all "items of
substantive evidence that existed before the investigation began, such as
video recordings or documentary evidence relevant to the crime"; and all
"materials ... [that] are related to [an] incident ... [that] was the subject of
a criminal investigation." ___ So. 3d at ___, ___.
The sweep of those pronouncements is breathtaking. In essence, all
evidence in the possession of law-enforcement agencies, whether created
49
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by the agency or received from others, is now exempt from citizens'
statutory right to access public records. Whatever that interpretation of
the statute can be called, it cannot be called a narrow construction in
favor of open records that Allen requires. Further, it creates precisely the
result that we cautioned against in Water Works: "[A] record that would
ordinarily be subject to disclosure under the Open Records Act does not
become private simply because it is given to law-enforcement personnel."
892 So. 2d at 866 n.4. Under today's decision, to be exempted, a record
need only be given to law-enforcement personnel and be somehow
"related," no matter how tenuously, to a criminal investigation. Even the
Sheriffs are circumspect enough not to advocate for that position:
"To be clear, the [Sheriffs] are not asserting that [the
investigative-privilege statute] provides a blanket exception
for any and all materials that have been gathered by a law
enforcement entity during the course of an investigation.
Clearly, such a position would run afoul of this Court's
instruction that the exception[] set forth in [the statute] should
be narrowly construed. [Allen], 32 So. 3d at 1271."
Sheriffs' brief at p. 43.13
13The same point applies under the analogous attorney-client
privilege. A record is not privileged merely because a client gives it to his
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With one sweeping stroke, today's decision spells the end of public
access to law-enforcement records that are connected in any way to an
investigation. Hidden now from the public eye are body-cam videos, dash-
cam videos, 9-1-1 recordings, and anything else that is remotely connected
to a crime or even potential crime. After today, as to law-enforcement
agencies at least, the statute might as well be titled the Closed Records
Act.
The special concurrence's protestations do nothing to lighten this
heavy shroud. Of course government agencies are free to disclose records
voluntarily, but that is not the point of the Open Records Act. Like law in
general, the Act exists to compel people to do what they will not do
voluntarily. So the fact that some people do not need the prod of the law
in no way lessens the harm of removing that prod from those who do.
Further, it will not do to protest that the investigative-privilege statute
is but one small exception to the Open Records Act. It is the statute that
attorney. United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997) ("It
goes without saying that documents do not become cloaked with the
lawyer-client privilege merely by the fact of their being passed from client
to lawyer.").
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determines the public's access to law-enforcement records; it is the statute
at issue in this case; and if this Court's interpretation of a statute is
wrong, it is no answer to say that the error is limited to the statute being
interpreted. Moreover, the concurrence's attempt to downplay the effect
of today's decision will not be borne out by history. Because of its broad
scope, the decision will be relied on by every smart lawyer who must
defend any denial of a public-records request by a law-enforcement
agency. And nothing in the decision gives any reason to believe that such
a defense will ever lose.
I cannot sit idly by while this Court shrinks a legal right of the
people of Alabama to the vanishing point. And I especially cannot do so
when that shrinkage flies in the face of text and precedent. If the public's
access to law-enforcement records is to be eviscerated via the
investigative-privilege statute, that may be a right of the Legislature, but
the statute's language as it stands today cannot bear that load. Now, the
Court's decision leaves only a clouded future -- and perhaps the
Legislature -- to deal with the damage.
52 | September 24, 2021 |
de0c0232-f52a-4ba9-89ba-f7d60bf9ee3a | Ex parte Tiffany Robin Roberts. | N/A | 1200605 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200605
Ex parte Tiffany Robin Roberts. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: Tiffany Robin Roberts v. David
Todd Roberts) (Morgan Circuit Court: DR-11-900052.03; Civil Appeals :
2190947).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
6f1da065-3a0e-47eb-8938-22bb796f58b6 | Ex parte Timothy Wayne Brown. | N/A | 1200692 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200692
Ex parte Timothy Wayne Brown. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Timothy Wayne Brown v.
State of Alabama) (Morgan Circuit Court: CC-10-1287.60; Criminal Appeals
:
CR-19-1150).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
02aec0c9-7fc7-44d4-acdd-6cea94acec99 | Ex parte Karen H. Jackson, as guardian ad litem for S.S. | N/A | 1210022 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210022
Ex parte Karen H. Jackson, as guardian ad litem for S.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for S.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-383.02; Civil Appeals :
2200277).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 12, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
ec8816ae-43ba-4303-8cc6-271aa7b68a49 | Ex parte R.W. | N/A | 1200323 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200323 Ex parte R.W. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: R.W. v. Tuscaloosa County
Department of Human Resources) (Tuscaloosa Juvenile Court:
JU-12-567.03; Civil Appeals : 2190678).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Writ Quashed. No Opinion. Stewart, J. - Shaw, Wise, Bryan, Mendheim,
and Mitchell, JJ., concur. Parker, C.J., and Bolin, and Sellers, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
a8081f98-29b2-409c-99d4-e81ae826ebab | Ex parte Living By Faith Christian Church | N/A | 1190872 | Alabama | Alabama Supreme Court | Rel: November 5, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2021-2022
____________________
1190872
____________________
Ex parte Living By Faith Christian Church
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Living By Faith Christian Church
v.
Young Men's Christian Association of Birmingham)
(Jefferson Circuit Court, CV-18-349;
Court of Civil Appeals, 2180674)
1190872
STEWART, Justice.
We granted the certiorari petition of Living By Faith Christian
Church ("the Church") to consider, as a question of first impression,
whether Rule 55(b)(2), Ala. R. Civ. P., requires a trial court to hold a
hearing before entering a default judgment. The Court of Civil Appeals,
in Living By Faith Christian Church v. Young Men's Christian Ass'n of
Birmingham, [Ms. 2180674, Mar. 20, 2020] ___ So. 3d ___ (Ala. Civ. App.
2020), determined that the Jefferson Circuit Court ("the trial court") did
not err in granting the application for a default judgment filed by the
Young Men's Christian Association of Birmingham ("the YMCA") without
first holding a hearing. Based on the reasons expressed below, we agree
with the Court of Civil Appeals' determination and conclude that Rule
55(b)(2) does not require a trial court to hold a hearing on every
application or motion for a default judgment.
Background
The Court of Civil Appeals provided the following relevant factual
and procedural history:
2
1190872
"On August 14, 2018, the Young Men's Christian
Association of Birmingham ('the YMCA') commenced an action
against the Church and four of its employees, Jeremy Price,
Johnitra Price, Tavares Cook, and Jessica Cook. The YMCA's
complaint alleged that the YMCA had given the Church
permission to use one of the YMCA's buildings ('the building')
in Birmingham on a temporary basis, that the YMCA had
subsequently notified the Church that it would have to vacate
the building, and that the Church had refused to vacate the
building. As relief, the YMCA's complaint sought possession of
the building and an award of damages. All five defendants
were served with process, with Jeremy Price being served not
only individually but also as the Church's agent. On
September 7, 2018, a single answer signed by both of the
Prices and both of the Cooks was filed on behalf of all five
defendants. In the answer, the defendants described the
Church as 'a domestic non-profit corporation organized and
existing under the laws of the State of Alabama.' Jeremy Price
signed the answer as 'Founder & Senior Pastor, Living By
Faith Christian Church,' and Johnitra Price signed the answer
as 'Executive Pastor, Living By Faith Christian Church.' A
licensed attorney did not sign the answer on behalf of any of
the defendants.
"On October 15, 2018, the YMCA filed a motion for a
partial summary judgment against all five defendants insofar
as the YMCA's complaint sought possession of the building. On
October 22, 2018, a response opposing the YMCA's
partial-summary-judgment motion was filed on behalf of all
five defendants. Jeremy Price signed that response as 'Founder
& Senior Pastor, Living By Faith Christian Church,' and
Johnitra Price signed that response as 'Executive Pastor,
Living By Faith Christian Church.' A licensed attorney did not
sign that response on behalf of any of the defendants.
3
1190872
"Also on October 22, 2018, the YMCA filed an application
and affidavit for the entry of a default judgment ('the
application') against the Church for failure to answer or
otherwise defend, presumably based on the fact that neither
the Church's answer nor its response in opposition to the
partial-summary-judgment motion had been signed by a
licensed attorney. See, e.g., Progress Indus., Inc. v. Wilson, 52
So. 3d 500, 597 (Ala. 2010) (recognizing that the general rule
in Alabama is that a person must be a licensed attorney in
order to represent a separate legal entity, such as a
corporation, and that a pleading filed by a nonattorney
engaging in the unauthorized practice of law by purporting to
represent a separate legal entity is a nullity). The YMCA
supported its application with an affidavit signed by Dan Pile,
the YMCA's president and chief operating officer, in which he
testified that the YMCA owned title to the building,
authenticated the attached deed by which the YMCA had
acquired title to the building, testified that the YMCA had
given the Church permission to use the building for Sunday
church services until the YMCA conveyed the building to the
A.G. Gaston Boys & Girls Club ('the Boys & Girls Club'),
authenticated an e-mail informing the Church that it was
permitted to use the building for Sunday church services until
the building was conveyed to the Boys & Girls Club, testified
that he had notified the Church that they would have to vacate
the building so that the YMCA could close the transfer of the
building to the Girls & Boys Club, and testified that the
Church had refused to vacate the building. The YMCA served
the application on both of the Prices and both of the Cooks, but
it did not send a service copy addressed to the Church. None
of the defendants requested a hearing regarding the
application.
"On December 12, 2018, the trial court held a hearing
regarding the partial-summary-judgment motion at which the
4
1190872
YMCA's attorney, both of the Prices, and both of the Cooks
appeared. The record does not contain a transcript of that
hearing. On December 14, 2018, the trial court entered two
separate judgments. One of those judgments was a partial
default judgment against the Church insofar as the YMCA
sought possession of the building. The other judgment was a
partial summary judgment against the Prices and the Cooks
insofar as the YMCA sought possession of the building.
Neither judgment adjudicated the action insofar as the
YMCA's claim sought damages. The partial default judgment
against the Church contained a certification that it was a final
judgment pursuant to Rule 54(b), Ala. R. Civ. P. The partial
summary judgment did not contain such a certification;
however, in response to a motion filed by the YMCA, the trial
court, on January 10, 2019, entered an order certifying the
partial summary judgment as a final judgment pursuant to
Rule 54(b).
"On January 14, 2019, a motion to set aside the partial
default judgment against the Church signed by Johnitra Price
as executive pastor of the Church was filed. On January 16,
2019, the YMCA filed a response to the motion to set aside the
partial default judgment in which it alleged, among other
things, that the Prices and the Cooks had been advised at the
December 12, 2018, hearing that the Church had to be
represented by a licensed attorney and that, despite being so
advised, a nonattorney had improperly filed the motion to set
aside the partial default judgment on behalf of the Church. On
January 31, 2019, the YMCA filed a motion to strike the
motion to set aside the partial default judgment on the ground
that it had been filed on behalf of the Church by a
nonattorney.
"On April 4, 2019, the trial court held a hearing at which
the Prices and the Cooks appeared but no licensed attorney
5
1190872
appeared on behalf of the Church. The trial court ruled that it
could not consider arguments made by nonattorneys on behalf
of the Church and denied the motion to set aside the partial
default judgment.
"On April 15, 2019, a licensed attorney representing the
Church filed a Rule 60(b)(4), Ala. R. Civ. P., motion for relief
from the partial default judgment. In that motion, the Church,
citing Progress Industries, Inc. v. Wilson, 52 So. 3d 500 (Ala.
2010), and Dial v. State, 374 So. 2d 361 (Ala. Civ. App. 1979),
asserted that, regardless of whether the Church had validly
defended the action through its having a nonattorney file the
September 7, 2018, answer on its behalf, the filing of that
answer on its behalf constituted an 'appearance' in the action
by the Church for purposes of Rule 55(b)(2), Ala. R. Civ. P.;
that, because the Church had appeared in the action for
purposes of Rule 55(b)(2), Rule 55(b)(2) required the YMCA to
give the Church notice of the filing of the application; that the
YMCA had not given the Church such notice; and that,
therefore, the partial default judgment against the Church had
to be set aside. Following a hearing, the trial court entered an
order denying the Church's Rule 60(b)(4) motion on May 6,
2019."
Living By Faith Christian Church, ___ So. 3d at ___ (footnotes omitted).
On appeal, the Church argued, among other things, that the partial
default judgment entered against the Church was due to be vacated
because the trial court had failed to hold a hearing on the YMCA's
application for a default judgment before granting the application. The
Church contended that, pursuant to Rule 55(b)(2), Ala. R. Civ. P., a trial
6
1190872
court is required to hold a hearing on an application or motion for a
default judgment when the defaulting party has appeared in the action.
The Court of Civil Appeals, in affirming the trial court's denial of the
Church's Rule 60(b)(4), Ala. R. Civ. P., motion for relief from the partial
default judgment entered against the Church, concluded:
"[B]ased on the presence of permissive language in Rule
55(b)(2) providing that a trial court 'may' hold a hearing on an
application for a default judgment, based on the absence of any
language in Rule 55(b)(2) requiring a trial court to hold such
a hearing, based on the fact that the application itself
established the YMCA's prima facie right to possession of the
building, and based on the fact that the Church did not request
a hearing regarding the application despite having notice of
the filing of the application through its agents Jeremy Price
and Johnitra Price, we conclude that the trial court in the
present case was not required to hold a hearing on the YMCA's
application and, therefore, that the trial court did not commit
reversible error in denying the Church's Rule 60(b)(4) motion
insofar as that motion was based on the ground that the trial
court had not held a hearing regarding the application.
Accordingly, we affirm the trial court's judgment."
Living By Faith Christian Church, ___ So. 3d at ___.
Standard of Review
"In reviewing a decision of the Court of Civil Appeals on
a petition for a writ of certiorari, this Court 'accords no
presumption of correctness to the legal conclusions of the
intermediate appellate court. Therefore, we must apply de
7
1190872
novo the standard of review that was applicable in the Court
of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So. 2d 132,
135 (Ala.1996). Because the material facts before the Court of
Civil Appeals were undisputed, that court's review of the trial
court's ruling would be de novo as well. State Dep't of Revenue
v. Robertson, 733 So. 2d 397, 399 (Ala. Civ. App. 1998). This is
particularly true where the intermediate appellate court is
construing statutory provisions. Robertson, supra; Pilgrim v.
Gregory, 594 So. 2d 114, 120 (Ala. Civ. App. 1991)."
Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).
Discussion
At issue in this certiorari proceeding is whether the language of Rule
55(b)(2) required the trial court to hold a hearing before entering a default
judgment. Rule 55(b)(2) states, in pertinent part:
"If the party against whom judgment by default is sought has
appeared in the action, the party (or, if appearing by
representative, the party's representative) shall be served with
written notice of the application for judgment at least three (3)
days prior to the hearing on such application, provided,
however, that judgment by default may be entered by the court
on the day the case is set for trial without such three (3) days
notice. If, in order to enable the court to enter judgment or to
carry it into effect, it is necessary to take an account or to
determine the amount of damages or to establish the truth of
any averment by evidence or to make an investigation of any
other matter, the court may conduct such hearings or order
such references as it deems necessary and proper and shall
accord a right of trial by jury pursuant to the provisions of
Rule 38[, Ala R. Civ. P.]."
8
1190872
Whether Rule 55(b)(2) requires a trial court to hold a hearing on
every application or motion for a default judgment is an issue of first
impression for this Court. When interpreting a statute, a court must give
the language of the statute its plain and commonly understood meaning,
and if the language is unambiguous, the court must apply the clearly
expressed intent of the legislature. Blue Cross & Blue Shield of Alabama,
Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998). This principal of
construction also applies to a court's interpretation of the Rules of Civil
Procedure. Moffett v. Stevenson, 909 So. 2d 824, 826 (Ala. Civ. App. 2005).
In arguing that the plain language of Rule 55(b)(2) requires the trial
court to hold a hearing before ruling on an application or motion for a
default judgment, the Church points to the language of the first sentence
of the portion of the rule that we quoted above: "If the party against whom
judgment by default is sought has appeared in the action, the party (or,
if appearing by representative, the party's representative) shall be served
with written notice of the application for judgment at least three (3) days
prior to the hearing on such application." Because the word "hearing" in
9
1190872
that sentence is preceded with the definite article "the," as opposed to the
indefinite article "a," the Church argues that the use of the definite article
requires an interpretation of the rule that compels the trial court to hold
a hearing before ruling on an application or motion for a default judgment.
The second sentence of the previously quoted portion of the rule, however,
includes permissive language that "the court may conduct such hearings
or order such references as it deems necessary and proper." See Hanover
Ins. Co. v. Kiva Lodge Condo. Owners' Ass'n, 221 So. 3d 446, 452 (Ala.
2016)(" '[O]rdinarily, the use of the word "may" indicates a discretionary
or permissive act, rather than a mandatory act.' Ex parte Mobile Cty. Bd.
of Sch. Comm'rs, 61 So. 3d 292, 294 (Ala. Civ. App. 2010).").
The language of Rule 55(b)(2) is ambiguous, and the Court of Civil
Appeals has recognized the lack of clarity the rule provides. In Living By
Faith Christian Church, the Court of Civil Appeals relied, in part, on
Abernathy v. Green Tree Servicing, LLC, 54 So. 3d 422, 426 (Ala. Civ.
App. 2010), in which that court recognized that the rule is not clear
regarding whether hearings are required. In Abernathy, the trial court
entered a default judgment against the defendant. Id. at 424. The
10
1190872
defendant filed a motion to set aside the default judgment on the ground
that her attorney had not received a copy of the motion for a default
judgment and that, therefore, she had not received three days' notice
before the trial court entered the default judgment. Id. The trial court
denied the defendant's motion, and she appealed. The Court of Civil
Appeals reversed the trial court's decision, holding that the three days'
notice contemplated in the rule is required before the entry of a default
judgment, regardless of whether the trial court decides to hold a hearing
on the motion. Id. at 426. The Court of Civil Appeals further concluded:
" That notice must be given can be assumed from the language
of the rule. Admittedly, the language of the rule is difficult to
apply when a trial court does not hold a hearing on an
application for a default judgment. However, given the purpose
of providing notice of an application for a default judgment
against a party that has appeared in the case, the requirement
that notice be provided cannot hinge on whether the trial court
holds a hearing on the application, especially given that the
notice to be given is that an application for a default judgment
has been sought, not that a hearing has been scheduled on
that application."
Id. See also Hayes v. Hayes, 472 So. 2d 646, 650 (Ala. Civ. App.
1985)(explaining that a defendant "was entitled to receive the three day
11
1190872
notice before the entry of a judgment by default" but not specifying that
a hearing was required).
In interpreting the language of a rule, we can also look to the
committee comments to the rule as persuasive authority. Iverson v. Xpert
Tune, Inc., 553 So. 2d 82, 88 (Ala. 1989)("Although the committee
comments are not binding, they may be highly persuasive. See Thomas v.
Liberty National Life Ins. Co., 368 So. 2d 254 (Ala. 1979)."). The
Committee Comments on 1973 Adoption of Rule 55 state that Rule
55(b)(2) "provides for three days notice prior to entry of default judgment,
when the defendant has once appeared. Note, however, the three day
notice is not applicable when the act of default is the failure to appear
when the case is set for trial." The committee comments specify that three
days' notice is required before the entry of a default judgment; the
comments do not state that the three days' notice is required before
holding a hearing or that a hearing must be held on an application or
motion for a default judgment.
In addition, because the Alabama Rules of Civil Procedure were
modeled after the Federal Rules of Civil Procedure, and Federal Rule
12
1190872
55(b)(2) is substantially similar to Alabama Rule 55(b)(2),1 we can consider
as persuasive authority federal decisions construing Rule 55(b)(2) of the
Federal Rules of Civil Procedure. Ex parte Novus Utils., Inc., 85 So. 3d
988, 996 (Ala. 2011). Rule 55(b)(2), Fed. R. Civ. P., states, in pertinent
part:
"If the party against whom a default judgment is sought has
appeared personally or by a representative, that party or its
representative must be served with written notice of the
application at least 7 days before the hearing. The court may
conduct hearings or make referrals -- preserving any federal
statutory right to a jury trial -- when, to enter or effectuate
judgment, it needs to:
"(A) conduct an accounting;
"(B) determine the amount of damages;
"(C) establish the truth of any allegation by
evidence; or
"(D) investigate any other matter."
Federal courts have held that Rule 55(b)(2), Fed. R. Civ. P., does not
require a hearing before a ruling on a default-judgment motion. See
Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir. 2009) ("In permitting, but
1See Rule 55, Ala. R. Civ. P., Committee Comments on 1973
Adoption (noting the similarity between the rules).
13
1190872
not requiring, a district court to conduct a hearing before ruling on a
default judgment, Rule 55(b) commits this decision to the sound discretion
of the district court."); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 116 (2d
Cir. 2015)(citing, among other cases, Finkel, 577 F.3d at 87) ("The decision
whether to enter default judgment is committed to the district court's
discretion, ... as is the decision whether to conduct a hearing before
deciding the default judgment motion."); Securities & Exch. Comm'n v.
Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005) ("An evidentiary hearing
is not a per se requirement; indeed, Rule 55(b)(2) speaks of evidentiary
hearings in a permissive tone."); and United States ex rel. Use of Time
Equip. Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993)
(holding that the trial court erred in entering a default judgment on the
same day the plaintiff filed a second affidavit of default, because the
defendant had appeared in the action, albeit late, and was thus entitled
to three days' notice before the entry of a default judgment; the court did
not address or indicate whether the trial court had erred by not holding
a hearing). See also Segars v. Hagerman, 99 F.R.D. 274, 275 (N.D. Miss.
1983)(describing the three days' notice requirement as notice required
14
1190872
before a default judgment could be entered, not as notice required before
a hearing is held). But see City Wholesale Grocery Co. v. Pike (In re Pike),
79 B.R. 41, 45 and n.6 (Bankr. N.D. Ala. 1987)(explaining that a
defendant is entitled to "at least an opportunity for a hearing" before the
entry of a default judgment and that "the applicable portion of subsection
(b)(2) of Rule 55 ... anticipates that a hearing will be held on such
application"). Based on the consideration of the foregoing authorities, we
conclude that Rule 55(b)(2) does not require a trial court to hold a hearing
before entering a default judgment in every circumstance and that,
instead, a trial court has the discretion to determine whether a hearing
is necessary.
The Church argues that interpreting Rule 55(b)(2) as not requiring
a hearing on every application or motion for a default judgment runs afoul
of previous holdings of this Court, and it cites Cornelius v. Browning, 85
So. 3d 954 (Ala. 2011), in arguing that the failure to hold a hearing before
entering a default judgment violates the defendant's due-process rights.
This Court's decision in Cornelius did not directly address whether the
trial court's failure to hold a hearing violated the defendant's due-process
15
1190872
rights. Instead, this Court concluded that the plaintiffs' purported
attempt to notify the defendant of the default-judgment motion by mailing
the motion to an address the plaintiffs knew was incorrect violated due
process because the notice was not reasonably calculated to apprise the
defendant of the pendency of the default-judgment motion. Cornelius, 85
So. 3d at 961. In the present case, notice of the application for a default
judgment, which is absolutely required, is not at issue -- the issue is
whether the trial court must always hold a hearing before entering a
default judgment, which, as explained above, we answer in the negative.
In further support of its argument that Rule 55(b)(2) requires a
hearing, the Church analogizes the language of that rule with the
language of Rule 56(c)(2), Ala. R. Civ. P., concerning summary-judgment
motions. Rule 56(c)(2) provides that summary-judgment motions "shall
be served at least ten (10) days before the time fixed for the hearing" and
that "any statement or affidavit in opposition shall be served at least two
(2) days prior to the hearing." The Church contends that this Court has
interpreted Rule 56(c)(2) as requiring a hearing on summary-judgment
motions and, therefore, that we should apply the same interpretation to
16
1190872
Rule 55(b)(2). This Court has stated that "Rule 56(c) does by its language
contemplate a hearing upon a motion for summary judgment." Lightsey
v. Bessemer Clinic, P.A., 495 So. 2d 35, 38 (Ala. 1986). However, this
Court has also explained:
"In applying the provisions of Rule 56(c), trial courts are
given limited discretion. Kelly v. Harrison, 547 So. 2d 443, 445
(Ala.1989). In fact, this Court has stated that a trial court
may, within its discretion, dispense with the hearing
altogether and rule on the motion without any further
proceedings. See Pate v. Rollison Logging Equip., Inc., 628 So.
2d 337, 341 (Ala.1993). But once a hearing is set, the
requirements of procedural due process change accordingly."
Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000). See also Pate v.
Rollison Logging Equip., Inc., 628 So. 2d 337, 341 (Ala. 1993) (holding that
disposing of summary-judgment motions after conducting a pretrial
conference was sufficient and that a trial court is not required to hold "a
special hearing, ... because the trial court has a range of discretion in
applying Rule 56(c)"). See also Hendon v. Holloway, 242 So. 3d 1000, 1005
(Ala. Civ. App. 2017)(holding that trial court was not required to allow the
defendant an opportunity to be heard orally after summary-judgment
motions were filed and noting that trial court had allowed defendant an
opportunity to respond to motions, that trial court had advised that it
17
1190872
would take the motions under submission, and that defendant had not
requested a hearing). Accordingly, the Church's argument is unavailing
because, even in the context of hearings on summary-judgment motions,
our caselaw has held that the trial court is afforded some level of
discretion.2
Conclusion
For the foregoing reasons, we agree with the conclusion of the Court
of Civil Appeals that Rule 55(b)(2) affords a trial court discretion to
determine whether to hold a hearing before entering a default judgment,
and, therefore, we affirm that court's judgment.
AFFIRMED.
Shaw, Wise, Bryan, Sellers, and Mendheim, JJ., concur.
Parker, C.J., and Bolin and Mitchell, JJ., dissent.
2Furthermore, the dissimilarities between the purposes of Rule 55
and Rule 56 dissuade us from interpreting them synonymously. Summary-
judgment proceedings differ from default-judgment proceedings in that a
default judgment is proper when the defendant has failed to "plead or
otherwise defend," Rule 55(a), thus demonstrating the defendant's lack of
proper participation in the action, while a summary judgment is proper
when there are no genuine issues of material fact in dispute. See Ex parte
Rush, 419 So. 2d 1388, 1390 (Ala. 1982).
18
1190872
PARKER, Chief Justice (dissenting).
I believe that the language of Rule 55(b)(2), Ala. R. Civ. P., requires
a hearing on an application for a default judgment when the defaulting
party has appeared in the action. Subsection (2)'s penultimate sentence
tying its three-day-notice deadline to "the hearing" is nonsensical if no
hearing is held. And the subsection's last sentence providing that the trial
court "may" conduct a hearing refers to a different kind of hearing.
Rule 55(b) provides:
"Judgment by default may be entered as follows:
"(1) By the Clerk. When the plaintiff's claim against a
defendant is for a sum certain or for a sum which can by
computation be made certain, the clerk ... shall enter judgment
for that amount and costs against the defendant, if the
defendant has been defaulted for failure to appear ....
"(2) By the Court. In all other cases the party entitled to
a judgment by default shall apply to the court therefor .... If
the party against whom judgment by default is sought has
appeared in the action, the party ... shall be served with
written notice of the application for judgment at least three (3)
days prior to the hearing on such application .... If, in order to
enable the court to enter judgment or to carry it into effect, it
is necessary to take an account or to determine the amount of
damages or to establish the truth of any averment by evidence
or to make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems
necessary and proper ...."
19
1190872
(Emphasis added.)
When possible, we must ascribe meaning to every word of a rule and
construe the rule in such a way that gives effect to all of its provisions.
Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So. 2d
909, 913 (Ala. 2004). In the penultimate sentence of subsection (2), the
words "the hearing" strongly suggest that a hearing must be held; more
than commanding it, the sentence fundamentally assumes that one will
be held. Moreover, the Court of Civil Appeals has remarked that the
three-day notice deadline is "difficult" to apply if no hearing is held.
Abernathy v. Green Tree Servicing, LLC, 54 So. 3d 422, 426 (Ala. Civ.
App. 2010). That is an understatement; the deadline is impossible to apply
if no hearing is scheduled. Because, in the absence of a hearing, the words
"the hearing" have no meaning and the notice deadline cannot be given
effect as written, the rule must be interpreted as requiring a hearing.
The main opinion finds ambiguity in subsection (2) because of
permissive language in its last sentence:
"If, in order to enable the court to enter judgment or to carry
it into effect, it is necessary to take an account or to determine
the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other
20
1190872
matter, the court may conduct such hearings or order such
references as it deems necessary and proper ...."
Rule 55(b)(2) (emphasis added).
To understand that sentence, however, it is important to recognize
the underlying connections between subsections (1) and (2). Subsection (1)
allows a clerk of court to enter a default judgment when two conditions
are satisfied: the defendant has failed to appear, and the plaintiff's claim
is for a sum certain (or a sum that merely requires computation). "In all
other cases," Rule 55(b)(2), i.e., when one of those conditions is not
satisfied, then a default judgment can be entered only by the court under
subsection (2). The last two sentences of subsection (2) then provide for
two kinds of hearings; each kind relates to the absence of one of the
conditions in subsection (1). First, if the defendant has appeared, then
subsection (2)'s penultimate sentence requires a hearing to determine
whether to enter a default judgment: "If the party against whom judgment
by default is sought has appeared in the action, the party ... shall be
served with written notice of the application for judgment at least three
(3) days prior to the hearing on such application ...." (Emphasis added.)
Second, if the court determines that a default judgment should be entered
21
1190872
but the amount of damages is not a sum certain (or if other factual issues
remain), then subsection (2)'s last sentence allows a hearing to determine
the amount of damages (or decide those other factual issues):
"If, in order to enable the court to enter judgment or to carry
it into effect, it is necessary to take an account or to determine
the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other
matter, the court may conduct such hearings or order such
references as it deems necessary and proper ...."
(Emphasis added.)
In this way, each of subsection (2)'s last two sentences refers to a
different kind of hearing conducted for a different purpose. "[T]he hearing"
required by the penultimate sentence is to determine whether a default
judgment should be entered at all. In contrast, the hearing that the court
"may conduct" under the last sentence presumes that a default judgment
will be entered and is held to determine the amount of damages or other
factual issues necessary for entry of the judgment. Unlike at the first kind
of hearing, at the second kind of hearing the defaulting party cannot argue
that a default judgment is improper; he can only contest the amount of
damages or other prejudgment factual issues. See 46 Am. Jur. 2d
Judgments § 289 (2017) (explaining that "the defaulting party usually is
22
1190872
entitled to participate in any hearing necessary for the adjudication of
damages" but that "[t]he [defaulting party] may not introduce evidence
tending to defeat the plaintiff's cause of action"). Further, unlike the first
kind of hearing, the second kind of hearing is not conditioned on the
defaulting party's having appeared; it is conditioned only on a need for
further fact-finding. This difference in conditions makes sense because in
some cases the defendant has not appeared but the amount of damages (or
some other fact) still needs to be established. See J & P Constr. Co. v.
Valta Constr. Co., 452 So. 2d 857 (Ala. 1984) (discussing need for hearing
on amount of damages when defaulting party had not appeared); see, e.g.,
Oliver v. Towns, 738 So. 2d 978, 799-800 (Ala. 1999) (illustrating such a
situation); Bass Pecan Co. v. Berga, 694 So. 2d 1311, 1313 (Ala. 1997)
(same). Conversely, unlike the second kind of hearing, the first kind of
hearing is not conditioned on a need for further fact-finding. It is
conditioned only on the fact that the allegedly defaulting party has
appeared. Because the two kinds of hearings are triggered by different
23
1190872
conditions and are held for different purposes, the two sentences providing
for them cannot be referring to the same hearing.3
In sum, the penultimate sentence of Rule 55(b)(2) can only be read
as requiring a hearing on an application for a default judgment, when the
allegedly defaulting party has appeared, to determine whether to enter
the judgment. And the discretionary language in the last sentence of Rule
55(b)(2) does not affect that hearing requirement, because that last
sentence refers to a different kind of hearing, triggered by a different
condition and held for a different purpose.
Bolin, J., concurs.
3As a practical matter, the two kinds of hearings do not have to be
held separately. If the allegedly defaulting party has appeared, the first
kind of hearing is held to determine whether to enter a default judgment.
If there is also a need for further fact-finding and the parties have been
apprised that it will be considered at the initial hearing, there is no reason
why that fact-finding cannot be conducted in the same hearing.
24
1190872
MITCHELL, Justice (dissenting).
"Perhaps no interpretive fault is more common than the failure to
follow the whole-text canon, which calls on the judicial interpreter to
consider the entire text, in view of its structure and of the physical and
logical relation of its many parts." Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts § 24, at 167
(Thomson/West 2012). That canon should guide our analysis here. We're
presented with an interpretive puzzle under Alabama Rule of Civil
Procedure 55(b)(2) -- whether the court must always hold a hearing on a
motion for default judgment against an appearing defendant. In my view,
the majority opinion fails to solve that puzzle because it reads the rule in
isolation from the rest of the rulebook. But if we zoom out and take
account of all of our Rules of Civil Procedure, the right answer becomes
clear: the Rules allow many kinds of motions to be decided without a
hearing, but a default-judgment motion under Rule 55(b)(2) is not one of
them.
The second sentence of Rule 55(b)(2) states, in part, that an
appearing defendant "shall be served with written notice of the
25
1190872
application for [default] judgment at least three (3) days prior to the
hearing on such application." (Emphasis added.) As Chief Justice Parker
explains, the phrase "the hearing on such application" facially
contemplates that the court will hold a hearing on the application. Very
similar language appears in Rule 27(a)(2) ("At least thirty (30) days before
the date of hearing the notice shall be served ....") and Rule 56(c)(2) ("The
motion for summary judgment ... shall be served at least ten (10) days
before the time fixed for the hearing ...."), the second of which we've long
read as requiring a hearing. See Lightsey v. Bessemer Clinic, P.A., 495
So. 2d 35, 38 (Ala. 1986).
That the language of these rules takes the holding of a hearing for
granted -- as opposed to explicitly stating that a hearing must be held --
is in line with the drafting approach of Rule 6(d), a general provision that
applies to all written motions under the Rules:
"A written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served not
later than five (5) days before the time specified for the
hearing, unless a different period is fixed by these rules or by
26
1190872
order of the court.[4] Such an order may for cause shown be
made on ex parte application. When a motion is supported by
affidavit, the affidavit shall be served with the motion; and,
except as otherwise provided in Rule 59(c), opposing affidavits
may be served not later than one (1) day before the hearing,
unless the court permits them to be served at some other
time."
(Emphasis added.) Outside the ex parte context, this rule clearly
contemplates (1) that every written motion will have a hearing and
(2) that notice of the time of that hearing will be served with the motion.5
The idea of a motion decided without a hearing is foreign to every one of
the rules mentioned so far.
4Rules 27(a)(2), 55(b)(2), and 56(c)(2) are all instances of rules that
"fix[]" "a different period."
5As noted, Rule 6(d) applies to all "written" motions. The only
unwritten motions allowed under the Rules are those "made during a
hearing or trial," Rule 7(b)(1), Ala. R. Civ. P. (emphasis added), a situation
in which the Rules do not need to mandate an additional hearing. Rule
7(b)(1) also provides that "[t]he requirement of writing is fulfilled if the
motion is stated in a written notice of the hearing of the motion," further
underscoring the intimate connection between a written motion and its
notice of hearing (which implies that a hearing will be held).
Also worthy of notice is Rule 12(d), which provides that a motion
under Rule 12(b) or (c) "shall be heard and determined before trial on
application of any party, unless the court orders that the hearing and
determination thereof be deferred until the trial." Once again, the text
takes for granted that there will be a hearing; the only question under
Rule 12(d) is when.
27
1190872
Of course, trial courts often dispose of motions without hearings.
But that is not because the rules cited above do not mean what they say.
Rather, it's because another rule expressly allows exceptions: "To expedite
its business, the court may make provision by rule or order for the
submission and determination of motions not seeking final judgment
without oral hearing upon brief written statements of reasons in support
and opposition." Rule 78, Ala. R. Civ. P. (emphasis added). The court may
also deny, but not grant, "a motion to dismiss without oral hearing." Id.
If we read all of these rules together, the overall structure of the
regime governing motion hearings is clear. Rule 6(d), by its terms,
requires a hearing on every written motion. Rules like Rules 27(a)(2),
55(b)(2), and 56(c)(2), by their terms, incorporate that requirement for the
particular kinds of motions they respectively govern. Rule 78 then
qualifies this general requirement, clearing a path -- which would not
exist absent this rule -- for courts to resolve at least some motions on the
briefs "without oral hearing." Indeed, it's longstanding doctrine under the
Federal Rules of Civil Procedure (on which our Rules are based) that Rule
78 is what gives trial courts authority to resolve motions without
28
1190872
hearings.6
But in Alabama, Rule 78 allows such treatment only for "motions not
seeking final judgment." See Rule 78, Ala. R. Civ. P., Committee
Comments on 1973 Adoption (emphasizing that "the rule prohibits the
612 Charles Alan Wright et al., Federal Practice and Procedure
§ 3091, at 524 (3d ed. Thomson Reuters 2014) ("Rule 78(b) permits any
district court to provide for submitting and determining motions on briefs
without oral hearing."); see Cia. Petrolera Caribe, Inc. v. Arco Caribbean,
Inc., 754 F.2d 404, 411 (1st Cir. 1985); Morrow v. Topping, 437 F.2d 1155,
1156 (9th Cir. 1971); Goodpasture v. Tennessee Valley Auth., 434 F.2d
760, 764 (6th Cir. 1970); Rose Barge Line, Inc. v. Hicks, 421 F.2d 163, 164
(8th Cir. 1970); Hazen v. Southern Hills Nat'l Bank of Tulsa, 414 F.2d
778, 780 (10th Cir. 1969); Jordan v. County of Montgomery, Pennsylvania,
404 F.2d 747, 748 (3d Cir. 1969); United States Fid. & Guar. Co. v.
Lawrenson, 334 F.2d 464, 466-67 (4th Cir. 1964); Enochs v. Sisson, 301
F.2d 125, 126 (5th Cir. 1962); see also FCC v. WJR, the Goodwill Station,
Inc., 337 U.S. 265, 284 n.18 (1949) (implying distinctly, though in dicta,
that Rule 78 is the source of this authority). True, some more recent
federal cases (like those the majority opinion cites) have overlooked Rule
78, reasoning as if the authority to dispense with a hearing is somehow
built into Rule 55(b)(2) itself. But see Kitlinski v. United States Dep't of
Justice, 994 F.3d 224, 232-33 (4th Cir. 2021) (acknowledging that Rule 78
is the source of trial courts' authority to decide motions without hearings);
Santana v. City of Tulsa, 359 F.3d 1241, 1246 (10th Cir. 2004) (same);
United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 839 (9th Cir.
2002) (same). But the question is academic under the Federal Rules
because Federal Rule 78(b) covers all motions. See Rule 78(b), Fed. R.
Civ. P. ("By rule or order, the court may provide for submitting and
determining motions on briefs, without oral hearings."). Our Rule 78 does
not, meaning that -- unlike in the federal system -- there are real stakes
to where the discretion to bypass a hearing comes from.
29
1190872
granting of a Motion Seeking Final Judgment such as a Motion for
Summary Judgment without giving the parties an opportunity to be heard
orally" (emphasis added)). A motion for default judgment under
Rule 55(b)(2) seeks final judgment, so Rule 78 has no role to play here in
qualifying the requirement of a hearing that Rules 6(d) and 55(b)(2)
impose by their terms. Read as a whole, our Rules of Civil Procedure
make clear that a court must hold a hearing on any motion for default
judgment against an appearing defendant, just as the plain language of
Rule 55(b)(2) suggests.7 For these reasons, I respectfully dissent.
7This conclusion does not imply an answer either way to the separate
question of whether the failure to hold a hearing is always reversible error
or might instead sometimes be harmless. See Rule 45, Ala. R. App. P.;
Rule 61, Ala. R. Civ. P. Because we granted certiorari review to decide
only whether a hearing is required under Rule 55(b)(2), I address only
that question.
30 | November 5, 2021 |
e7a89095-a179-4c55-ab60-c8d0dceb3c7b | Ex parte M. R. F. | N/A | 1200750 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200750
Ex parte M. R. F. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: M. R. F. v. State of Alabama)
(Montgomery Circuit Court: CC-18-1616; Criminal Appeals : CR-19-0230).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
5ee718c3-7505-46a9-92d1-537b4ea275cf | Ex parte Howard Ross. | N/A | 1200771 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200771
Ex parte Howard Ross. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Howard Ross v. Madison County; Dale
Strong, in his official capacity as Chariman of the Madison County Commission;
and Lynda Hall, in her official capacity as the Tax Collector of Madison County)
(Madison Circuit Court: CV-18-36; Civil Appeals: 2190876).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 10, 2021:
Writ Denied. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
02f8794f-1154-4aed-8bae-c178783917d4 | Ex parte Karen H. Jackson, as guardian ad litem for M.S. | N/A | 1210025 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210025
Ex parte Karen H. Jackson, as guardian ad litem for M.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for M.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-385.01; Civil Appeals :
2200280).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 12, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
4482e8bf-46f8-472e-99fb-37fb3e843715 | Ex parte Horace Leanders Crockett. | N/A | 1200650 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200650
Ex parte Horace Leanders Crockett. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of
Alabama v. Horace Leanders Crockett) (Jefferson Circuit Court:
CC-15-3018; CC-15-3019; Criminal Appeals :
CR-20-0538).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
6fcc9235-84ad-4999-baa6-c1db3f5a7587 | Steve D. Lands v. Betty Ward d/b/a Lucky B's Trucking | N/A | 1191074 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1191074 Steve D. Lands v. Betty Ward d/b/a Lucky B's Trucking (Appeal
from Morgan Circuit Court: CV-16-900303).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on September 10, 2021:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and
Shaw, Bryan, and Mendheim, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on June 25, 2021:
Affirmed In Part; Reversed In Part; And Remanded. Mitchell, J. -
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
8201dfca-0bab-4f3d-84e7-9dab17584e95 | Ex parte J.A.S. | N/A | 1200729 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200729
Ex parte J.A.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.A.S. v. S.W.S.) (Jefferson Circuit Court:
DR-18-900971; Civil Appeals : 2190756).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
35798b59-155c-4321-8d47-cf09910fdfa7 | Ex parte Thomas Michael Watson. | N/A | 1200752 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200752
Ex parte Thomas Michael Watson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Thomas Michael Watson
v. State of Alabama) (Madison Circuit Court: CC-19-3427; Criminal Appeals
: CR-19-1057).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
cc5ad065-64b5-4ba5-b452-d4a03559590c | Ex parte K. D. P. | N/A | 1200789 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200789
Ex parte K. D. P. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: K. D. P. v. State of Alabama) (Lauderdale
Circuit Court: CC-13-346.61; Criminal Appeals : CR-20-0280).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
5f8112d4-60e3-445f-b6ff-608c41f65641 | Ben E. Keith Company, Inc. v. Lyndon Southern Insurance Company | N/A | 1200599 | Alabama | Alabama Supreme Court | Rel: September 24, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200599
_________________________
Ben E. Keith Company, Inc.
v.
Lyndon Southern Insurance Company
Appeal from Tallapoosa Circuit Court
(CV-19-900094)
WISE, Justice.
Ben E. Keith Company, Inc. ("BEK"), appeals from an order by the
Tallapoosa Circuit Court entering a summary judgment in favor of Lyndon
Southern Insurance Company ("Lyndon") on Lyndon's complaint for a
declaratory judgment. We reverse and remand.
1200599
Facts and Procedural History
On December 14, 2018, Felicia Edwards and Robert Allen Marak
were involved in a motor-vehicle accident in Dadeville. Felicia was
driving a 2009 Toyota Camry automobile that was owned by Annette
Edwards and insured by Lyndon. Marak was driving a tractor-trailer that
was owned by BEK. As a result of the accident, BEK incurred damage to
its tractor-trailer.
On September 26, 2019, BEK sued Felicia and Annette in the
Tallapoosa Circuit Court. The complaint stated claims of negligence and
wantonness against both Felicia and Annette and a claim of negligent
entrustment against Annette.1 BEK later amended the complaint to add
a negligent-maintenance claim against Annette.
1On September 1, 2020, BEK filed a motion for the entry of defaults
and for the entry of default judgments against Felicia and Annette based
on their failure to respond to its complaint against them. On September
17, 2020, Felicia and Annette filed answers to BEK's complaint. They
denied BEK's claims and asserted multiple affirmative defenses.
2
1200599
On September 30, 2019, Lyndon filed a complaint for a declaratory
judgment against Felicia, Annette, and BEK in the Tallapoosa Circuit
Court. In its complaint, Lyndon included the following factual allegations:
"6. Annette Edwards completed an Application for
Automobile Insurance with Lyndon Southern Insurance
Company on April 9, 2018.
"7. Annette Edwards is the only identified driver on the
Application for Automobile Insurance with Lyndon Southern
Insurance Company.
"8. The Application for Automobile Insurance does not
identify any excluded drivers.
"9. On the Application for Automobile Insurance, Annette
Edwards agreed that all people who resided in her household,
including children away at school, had been disclosed on the
Application, either listed as a driver or excluded from
coverage.
"10. On the Application for Automobile Insurance,
Annette Edwards certified that she listed all persons in her
household and all drivers of the vehicles as well as all children
whether living with her or not and that she understood that no
coverage would be provided for drivers that are not listed on
her Policy whether they are in her household now or enter it
later.
"11. Annette Edwards signed the Application for
Automobile Insurance as well as all certifications contained
within the Application for Automobile Insurance on April 9,
2018.
3
1200599
"12. Lyndon Southern Insurance Company issued a
Declarations Page to Annette Edwards based on the
information she provided in the Application for Automobile
Insurance.
"13. The Policy Declarations Page identified the Policy
term as April 9, 2018, through October 9, 2018.
"14. The Declarations Page identified Annette Edwards
as the only covered driver.
"15. The Declarations Page did not identify any excluded
drivers.
"16. Lyndon Southern issued a Renewal Automobile
Policy Declarations page to Annette Edwards for a Policy term
of October 9, 2018, through April 9, 2019.
"17. The Renewal Automobile Policy Declarations page
identified Annette Edwards as the only covered driver.
"18. The Renewal Automobile Policy Declarations page
did not identify any excluded drivers.
"19. The Renewal Automobile Policy Declarations page
identified a 2009 Toyota Camry ....
"20. Felicia Edwards is Annette Edwards's daughter.
"21. Felicia Edwards is under the age of 25 years old.
"22. Felicia Edwards lived with Annette Edwards on
April 9, 2018.
4
1200599
"23. Felicia Edwards lived with Annette Edwards on
October 9, 2018.
"24. Felicia Edwards lived with Annette Edwards on
December 14, 2018.
"25. Felicia Edwards has lived with Annette Edwards
during all Policy periods of the Lyndon Southern Policies.
"26. Felicia Edwards was involved in a motor vehicle
accident on December 14, 2018.
"27. The motor vehicle accident occurred in Dadeville,
Tallapoosa County, Alabama.
"28. Felicia Edwards did not have a valid driver's license
at the time of the motor vehicle accident.
"29. Felicia Edwards was driving the 2009 Toyota Camry
identified on the Renewal Automobile Policy Declarations page
issued by Lyndon Southern Insurance Company to Annette
Edwards."
Lyndon also asserted that the policy it issued to Annette excluded
coverage for "[a]ny operator of a vehicle who is not listed as a driver on the
Policy Applications, Declarations, and/or added by Endorsement who is
under the age of twenty-five and is either a Family Member or resides in
the same household as the Named Insured" and for "[a]n operator of a
vehicle who is an unlicensed driver or whose driving privileges have been
5
1200599
terminated or suspended." Lyndon requested, in pertinent part, the
following:
"... That the Court order, adjudge, and decree that this is
a proper cause for an action of declaratory judgment and that
there is a bona-fide controversy between the parties as to their
legal rights, duties, status, and liabilities.
"... That the Court declare that Lyndon Southern has no
duty to defend nor indemnify Annette Edwards under the
Policy.
"... That the Court declare that Lyndon Southern has no
duly to defend or indemnify Felicia Edwards under the Policy."
On November 4, 2019, BEK filed an answer to Lyndon's complaint
for a declaratory judgment. On November 4, 2019, BEK moved to have
the two actions consolidated. On November 5, 2019, the trial court
granted that motion.
On November 14, 2019, Lyndon filed motions for the entry of
defaults against Annette and Felicia based on their failure to file answers
to its declaratory-judgment complaint. On September 21, 2020, the trial
court granted Lyndon's motion for entry of defaults against Felicia and
Annette. It then set the matter for further hearing on October 19, 2020.
6
1200599
On October 7, 2020, Lyndon filed a motion for a summary judgment
on its complaint for a declaratory judgment. It argued that Annette had
"made material misrepresentations on her Insurance
Application by failing to identify her daughter, Felicia
Edwards, as a household resident and potential driver. As
such, the [policy] is void and does not afford Felicia Edwards
or Annette Edwards coverage for the subject accident as the
unidentified Felicia Edwards was driving."
Lyndon asserted that those alleged misrepresentations were material and
caused the policy to be void ab initio. It also argued that the policy did not
afford any coverage because Felicia was an unlicensed driver and was,
therefore, a noncovered person. Finally, Lyndon argued that, because the
vehicle was being driven by a noncovered person, there was no coverage
for Annette with regard to BEK's negligent-entrustment and negligent-
maintenance claims.
On October 19, 2020, the trial court conducted the scheduled
hearing.
On November 3, 2020, BEK filed a Rule 56(f), Ala. R. Civ. P., motion
for a continuance to complete discovery so that it could respond to
7
1200599
Lyndon's motion for a summary judgment.2 In that motion, BEK asserted,
in part:
"3. Lyndon bases its motion on the unsupported
allegation that Annette Edwards misrepresented certain facts
on her application for the insurance policy and that Felicia
Edwards is not a covered driver because she was unlicensed.
"4. However, Lyndon has submitted no admissible
evidence to support either of these factual, allegations --
presumably because no discovery has taken place in this
matter."
BEK supported its motion with an affidavit from its attorney.
2On that same date, BEK filed a motion for a new trial and/or for
reconsideration of the trial court's alleged October 19, 2020, oral ruling
granting Lyndon's motion for a summary judgment. Specifically, it noted
in that motion that "counsel for the Edwards[es] informed the undersigned
that the court had granted Lyndon's motion for a summary judgment from
the bench." Counsel for Lyndon repeated that assertion during a second
hearing on December 21, 2020. However, nothing in the transcript of the
hearing on October 19, 2020, or from the case-action-summary-sheet in
the trial court indicates that the trial court actually granted Lyndon's
motion for a summary judgment on October 19, 2020. Rather, the case-
action-summary-sheet includes the notation "Summary Judgment/No
Action" on October 19, 2020. Instead, as is discussed infra, the trial court
entered a written order granting the motion for a summary judgment on
January 8, 2021.
8
1200599
On December 21, 2020, the trial court conducted a status conference.
On January 8, 2021, the trial court entered the following written order
granting Lyndon's motion for a summary judgment:
"Before this Honorable Court is Lyndon Southern
Insurance Company's Motion for Summary Judgment
pertaining to its Complaint for Declaratory Judgment .... Oral
Argument was heard on the Motion in open Court on October
19, 2020, and again on December 21, 2020. Based upon a
review of the Motion for Summary Judgment, including the
factual and legal arguments, and Oral Argument, this Court
hereby grants Lyndon Southern's Motion for Summary and in
doing so, Orders, Declares, and Finds that Lyndon Southern
Insurance Company has no duty to defend nor indemnify
Felicia Edwards or Annette Edwards for the claims and causes
of action asserted by Ben E. Keith Company, or any other
entity, whether named or unnamed, whether currently
pending or arising in the future, regarding the motor vehicle
accident that occurred on December 14, 2018.
"This is a final order addressing all claims asserted in the
Complaint for Declaratory Judgment."
BEK appealed the trial court's judgment to the Court of Civil
Appeals, and that court transferred the appeal to this Court.
Standard of Review
" ' "This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut.
Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We
apply the same standard of review as the trial
9
1200599
court applied. Specifically, we must determine
whether the movant has made a prima facie
showing that no genuine issue of material fact
exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R.
Civ. P.; Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In
making such a determination, we must review the
evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence of
a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer
the existence of the fact sought to be proved.' West
v. Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
" 'The role of this Court in reviewing a summary
judgment is well established -- we review a summary judgment
de novo, " 'apply[ing] the same standard of review as the trial
court applied.' " ' Horn v. Fadal Machining Ctrs., LLC, 972 So.
2d 63, 69 (Ala. 2007) (quoting Stokes v. Ferguson, 952 So. 2d
10
1200599
355, 357 (Ala. 2006), quoting in turn Dow v. Alabama
Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004)). ' "If the
movant meets [its] burden of production by making a prima
facie showing that [it] is entitled to a summary judgment,
'then the burden shifts to the nonmovant to rebut the prima
facie showing of the movant.' " ' Horn, 972 So. 2d at 69
(quoting American Gen. Life & Accident Ins. Co. v.
Underwood, 886 So. 2d 807, 811-12 (Ala. 2004), quoting in turn
Lucas v. Alfa Mut. Ins. Co., 622 So. 2d 907, 909 (Ala. 1993)).
" ' " ' [ T ] h e
m a n n e r
i n
w h i c h
t he
[summary-judgment]
movant's
burden
of
production is met depends upon which party has
the burden of proof ... at trial.' " Ex parte General
Motors Corp., 769 So. 2d 903, 909 (Ala. 1999)
(quoting Berner v. Caldwell, 543 So. 2d 686, 691
(Ala. 1989) (Houston, J., concurring specially)). If
... " 'the movant has the burden of proof at trial, the
movant must support his motion with credible
evidence, using any of the material specified in
Rule 56(c), [Ala.] R. Civ. P. ("pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits").' " 769 So. 2d at 909.
" 'The movant's proof must be such that he would
be entitled to a directed verdict [now referred to as
a judgment as a matter of law, see Rule 50, Ala. R.
Civ. P.] if this evidence was not controverted at
trial.' " Id. In other words, "when the movant has
the burden [of proof at trial], its own submissions
in support of the motion must entitle it to judgment
as a matter of law." Albee Tomato, Inc. v. A.B.
Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.
1998) (emphasis added). See also Equal
Employment Opportunity Comm'n v. Union
Independiente de la Autoridad de Acueductos y
11
1200599
Alcantarillados de Puerto Rico, 279 F.3d 49 (1st
Cir. 2002); Rushing v. Kansas City Southern Ry.,
185 F.3d 496 (5th Cir. 1999); Fontenot v. Upjohn
Co., 780 F.2d 1190 (5th Cir. 1986); Calderone v.
United States, 799 F.2d 254 (6th Cir. 1986).'
"Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195 (Ala.
2002). Moreover, we review the evidence in the light most
favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756,
758 (Ala. 1986)."
White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 10-11 (Ala. 2009).
Discussion
BEK argues that the trial court erroneously granted Lyndon's
motion for a summary judgment because Lyndon did not produce
substantial admissible evidence to establish that Felicia was a noncovered
person under the policy that insured Annette's vehicle at the time of the
accident. Specifically, it contends that Lyndon did not produce substantial
admissible evidence to establish that Felicia did not have a valid driver's
license at the time of the accident or to establish Felicia's age and
residence at the time of the accident.
Lyndon attempted to support its contention that Felicia did not have
a valid driver's license with a copy of an Alabama Uniform Traffic Crash
12
1200599
Report ("the accident report"). It offered the accident report to establish
that Felicia did not have a valid driver's license at the time of the accident
because the investigating officer used a code for "Not Applicable" in the
blank where Felicia's driver's license number was to be recorded.
However, even assuming that the accident report was admissible, Lyndon
did not present any evidence to establish that that code meant that Felicia
did not have a driver's license. Therefore, the accident report, standing
alone, was not sufficient to make a prima facie showing that there was no
genuine issue of material fact as to whether Felicia had a valid driver's
license at the time of the accident.
Lyndon attempted to support its contention that Felicia resided in
Annette's household with copies of two "Domestic Return Receipts" that
were addressed to Felicia and Annette at an address on Walker Road in
Camp Hill; that were both apparently signed for by Annette; and that
indicated a date of delivery of October 3, 2019. However, even assuming
that they were admissible, the copies of the "Domestic Return Receipts,"
standing alone, did not establish that Felicia resided with Annette. At
best, they established that Annette signed the return receipts sent to the
13
1200599
address on Walker Road on October 3, 2019. See Johnson v. State, 421 So.
2d 1306 (Ala. Crim. App. 1982). Further, even though Lyndon alleged in
its motion for a summary judgment that Felicia resided at the Walker
Road address and that the accident report showed that Felicia resided at
that address, the accident report actually lists Felicia's address as being
on MLK Street in Camp Hill. Therefore, the evidence Lyndon submitted
was actually in conflict and was not sufficient to make a prima facie
showing that there was no genuine issue of material fact as to whether
Felicia resided in Annette's household at the time of the accident.
Citing Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala. 1981),
Lyndon also argued that the entry of defaults against Felicia and Annette
constituted full proof of the allegations that were included in its complaint
for a declaratory judgment. In Dorcal, this Court stated:
"The general effect of an entry of default is that of a decree pro
confesso or a judgment by nil dicit at common law. 6 Moore's
Federal Practice § 55.03(2) at 55-32 (2nd ed. 1976); 10 C.
Wright & A. Miller, Federal Practice and Procedure § 2681
(1971). Under a decree pro confesso, the defaulting party loses
his standing in court, cannot appear in any way, cannot
adduce any evidence and cannot be heard at the final hearing.
Clifton v. Tomb, 21 F.2d 893 (4th Cir. 1927)."
14
1200599
(Emphasis added.) Although the holding in Dorcal may apply to Felicia
and Annette, there is no indication that that holding would apply to a
third party such as BEK. In fact, the application of the Dorcal holding to
a party like BEK, which answered and challenged the allegations in the
complaint for a declaratory judgment, is counterintuitive and
unwarranted. Cf. McDaniel v. Harleysville Mut. Ins. Co., 84 So. 3d 106
(Ala. Civ. App. 2011). Therefore, we conclude that Lyndon could not rely
on the allegations that are included in its complaint for a declaratory
judgment to establish any undisputed facts with regard to BEK.
For these reasons, Lyndon did not produce substantial evidence to
establish that Felicia did not have a valid driver's license at the time of
the accident and did not produce substantial evidence to establish that
Felicia was under the age of 25 and resided in Annette's household at the
time of the accident. Therefore, Lyndon did not shift the burden of proof
to BEK. Accordingly, the trial court erred in granting Lyndon's motion for
a summary judgment.
Conclusion
15
1200599
For the above-stated reasons, we reverse the trial court's judgment
and remand this case for proceedings that are consistent with this opinion.
REVERSED AND REMANDED.
Shaw, Bryan, and Mitchell, JJ., concur.
Bolin, Sellers, Mendheim, and Stewart, JJ., concur in the result.
Parker, C.J., dissents.
16 | September 24, 2021 |
54b01907-763d-495b-a1fa-46bad614ba5e | Ex parte L.T. | N/A | 1210077 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210077
Ex parte L.T. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: L.T. v. A.H.) (Limestone Juvenile Court:
JU-20-169.01; Civil Appeals : 2200413).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
463c2a9f-a737-4cdf-b04c-7c93361d1337 | Ex parte Kelvin Peacock. | N/A | 1200778 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200778
Ex parte Kelvin Peacock. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Kelvin Peacock v. MFG/Alabama, LLC)
(Covington Circuit Court: CV-17-900112; Civil Appeals : 2190345).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
1557e901-7d06-49c2-94a1-d5cce5c93491 | Ex parte Nathan Tillman. | N/A | 1200777 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200777
[STY
LE]
CERTIFICATE OF JUDGMENT
W
HEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and W
ise, Sellers, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
bb8c7f95-7628-4f09-9024-0be4b73764e7 | Harry J. Pommer and Brenda S. Pommer v. Melissa T. Granger, as administratrix of the Estate of Daniel D. Granger, deceased | N/A | 1190580 | Alabama | Alabama Supreme Court | Rel: September 03, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1190525
_________________________
Paul Childs and Granger Construction Company, LLC
v.
Harry J. Pommer and Brenda S. Pommer
_________________________
1190580
_________________________
Harry J. Pommer and Brenda S. Pommer
v.
Melissa T. Granger, as administratrix of the Estate of Daniel D.
Granger, deceased
Appeals from Baldwin Circuit Court
(CV-16-900017)
WISE, Justice.
In case number 1190525, two of the defendants below, Paul Childs
and Granger Construction Company, LLC ("Granger Construction"),
appeal from a judgment the Baldwin Circuit Court entered in favor of the
plaintiffs below, Harry J. Pommer ("Bud") and Brenda S. Pommer. In
their cross-appeal, case number 1190580, the Pommers appeal from the
trial court's judgment entered in favor of another of the defendants below,
Melissa T. Granger ("Melissa"), as the administratrix of the estate of
Daniel D. Granger ("Granger"), deceased.
Facts and Procedural History
In 2014, the Pommers decided to build a garage on property that
they owned in Fairhope. Bud testified that he initially contacted a
contractor he knew about building the garage, that that contractor did not
do that type of work, and that that contractor recommended Childs to
2
1190525 and 1190580
him. Bud testified that he telephoned Childs, that he told Childs that he
and Brenda wanted to build a garage in front of their house, that he asked
Childs if he was interested in doing the job and if he could do it, and that
Childs said that he could.
The Pommers subsequently met with Childs at their house. Bud
testified that his initial concern was whether they could build a garage in
front of the house. Bud testified that Childs said that he would contact
the proper authorities with the City of Fairhope ("the City") to find out
and then get back with them. Bud testified that, after that initial
meeting, Childs did some work for them regarding the design of the
garage. Initially, after checking with the City, Childs told the Pommers
that the garage could be built in front of their house. Childs worked on
some sketches and ultimately came up with a computer generated-
drawing of the garage. Childs gave the Pommers invoices dated July 2014
and September 29, 2014. Childs's name was on the top of both invoices.
The first invoice was for "Preliminary Design Work for Garage Addition,"
and the second invoice was for "Secondary Design Work for Garage
3
1190525 and 1190580
Addition." The Pommers paid both invoices by checks made payable to
Childs.
Childs subsequently gave the Pommers an estimate dated October
14, 2014, for constructing a garage in front of their house. Evidence was
presented indicating that Childs took some sketches of the garage to the
City for approval. However, the City informed Childs that a garage could
not be built in front of the Pommers' house unless it was attached to the
house. Because the Pommers were using their existing garage for other
purposes, they still needed another garage. Therefore, they continued to
work with Childs to come up with a new location and a new design for the
garage.
Evidence was presented indicating that Childs subsequently
prepared a set of plans for a garage to be built behind the Pommers' house
with a breezeway connecting the garage to the house. That set of plans
was marked as plaintiffs' exhibit 5 ("the original plans"). Evidence was
presented indicating that the original plans included a brick ledge for the
exterior bricks of the garage to be placed upon. Childs submitted plans for
4
1190525 and 1190580
the garage to John Peterson, an engineer, because the City required that
the plans have an engineer's stamp approving the plans. Childs testified
that he chose Peterson as the engineer. The plans stamped by Peterson,
which were plaintiffs' exhibit 6, were submitted to and approved by the
City ("the approved plans"). The approved plans did not include a brick
ledge.
The Pommers met with Childs again on December 10, 2014, after the
plans were approved. The Pommers testified that only the three of them
were present at that meeting, that Childs presented them with an
estimate for building the garage, that the estimate indicated that the total
cost for the project was $65,874, and that the estimated time for
completion of the project was four to five weeks. The estimate further
stated that 20% of the total cost would be required to start work and that
payments would be based on a draw schedule. However, the Pommers
never received a draw schedule. Bud testified that he told Childs that the
Pommers wanted to move forward with the project and that they arranged
a meeting for the following day to sign a contract with Childs.
5
1190525 and 1190580
The Pommers testified that Childs brought Granger with him to the
meeting on December 11, 2014. The Pommers testified that they had
never met or heard of Granger before that meeting and that they were
surprised when he showed up at that meeting. The Pommers presented
evidence indicating that, during that meeting, Childs told them that he
did not have a contractor's license and that he needed Granger because he
was a licensed contractor. The Pommers testified that, during that
meeting, they were given a "cost plus" contract for the construction of the
garage and breezeway ("the contract"). Granger Construction was listed
as the contractor, and the Pommers were listed as the owners. The
description of the work included the following:
"Contractor will furnish all labor, equipment, and material to
construct and complete in a good workmanlike and substantial
manner, the following work of improvement:
"Garage as shown in the attached plans. Covered
walk as detailed in plans
"Estimated price of project is $65,874.00
"This is a good faith estimate based upon market
pricing and bids by subs/suppliers. This figure does
include 10% profit and 5% overhead."
6
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The contract was executed during that meeting on December 11, 2014. It
was signed by Brenda as an owner. The signature line for the contractor
listed Granger Construction, and it was signed by Granger. At that time,
the Pommers gave Granger Construction a $13,000 check for the first
draw.
Construction started on the project around the middle of December
2014. Evidence was presented indicating that, during the construction
process, the Pommers were presented with five invoices from Granger
Construction: one for a $10,000 draw on December 30, 2014; one for a
$10,000 draw on January 9, 2015; one for a $10,000 draw on January 26,
2015; one for a $10,000 draw on February 11, 2015; and one for a $13,000
draw on March 10, 2015. The Pommers testified that Childs and Granger
were present when the invoices were presented to them and that Childs
predominantly did most of the talking and explaining regarding the
draws. The Pommers paid each of those invoices with checks made
payable to Granger Construction. Between December 11, 2014, and
7
1190525 and 1190580
March 10, 2015, the Pommers paid Granger Construction a total of
$66,000.
The evidence presented at trial indicated that the project
experienced significant delays. Evidence was presented indicating that
some of the delays were caused by the weather and because
subcontractors for the project were backed up. Evidence was also
presented indicating that the Pommers requested some changes to the
project, which contributed to some of the delays. Evidence was presented
indicating that Granger and Childs performed some of the physical labor
on the project, including digging the footings and putting up framing for
the slab for the garage. Bud testified that, as the project dragged on, he
began to wonder why Granger and Childs were doing the work at the
speed they were doing it instead of hiring subcontractors who could have
done the work faster. He further testified that he saw work done by
Childs and Granger that had to been redone. Evidence was presented
about issues that had arisen with the concrete for the breezeway, about
8
1190525 and 1190580
the Pommers' dissatisfaction with the finish of the concrete, and about
Childs's own dissatisfaction with the finish of the concrete.
Bud testified that, at the time the March 10, 2015, invoice was
presented to the Pommers, he and Brenda told the Childs and Granger
that they did not want to give them another check based on how things
had been going and because they wanted to be sure the job would be
finished. Bud testified that he and Brenda went out of town around the
first or second week of March and that they expected that the work would
be complete when they got back. Bud testified that, when they returned,
he observed that light fixtures were attached to the garage, but the wiring
was hanging down; that gates on the breezeway had been started, but
were not completed; that the work on the driveway and turn around had
not progressed; that painting had been started on the doors to the garage,
but were not completed; and that the hardware had not been installed on
the doors. He further testified that it appeared that a lot of work had
been started, but not finished.
9
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When asked if he or Brenda raised these issues with Childs or
Granger, Bud testified that Childs and Granger were not very talkative
and that Childs subsequently told him that they needed to have a
meeting. The Pommers met with Granger and Childs at their kitchen
table. During the meeting, Childs and Granger told the Pommers that
they needed an additional draw and that they could not do any additional
work without more money. The evidence established that the meeting
became heated. At one point, Granger made the statement to Brenda:
"[M]y daughter rolls her eyes like that, and it pisses me off when she does
it too." The Pommers testified that, at one point, Childs turned his chair
around, was leaning over Brenda, and was screaming and yelling in her
face. Bud testified that Childs appeared to be angry, that Childs's "eyes
were different," that Brenda was back in her chair and not saying
anything at that time, that he felt like the confrontation was starting to
become dangerous, and that he was afraid for his wife and of the situation.
Brenda also testified that she was afraid and did not know what to do.
Bud testified that he stood up, said that things had gone far enough, and
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1190525 and 1190580
told Granger and Childs to leave. Bud testified that Childs telephoned
him later that night, that Childs apologized, and that Childs asked if the
Pommers would give him and Granger a second chance to finish the job.
The Pommers met with the Childs and Granger again the following
day. The Pommers testified that, during that meeting, Childs and
Granger gave them paperwork they had not seen before, including time
sheets for the labor of Granger and Childs, a change-order document
indicating a total cost of $11,728.57 for the changes to the project, and a
punch list of items required to finish the job. Evidence was presented
indicating that Granger told the Pommers that the total cost to complete
the garage would be over $95,000 but that he would settle for $83,015.11.
Bud testified that, at the end of the meeting, the status of the project was
that Granger Construction and Childs would not do any more work until
the Pommers paid them more money. Bud testified that he did not feel
like any agreement had been reached at the end of the meeting and that
he told Childs and Granger that he would get back to them. Bud testified
that, because he did not want a replication of the previous heated
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meeting, he and Brenda contacted an attorney about the situation.
Counsel hired by the Pommers then sent Granger Construction and Childs
a letter dated March 31, 2015. That letter stated:
"Please be advised that the undersigned represents [the
Pommers] regarding the construction work you have been
performing at their home. Granger Construction Company,
LLC entered into a contract with my clients on December 11,
2014. The estimated time of completion passed long ago. The
'good faith estimate' of $65,874 has been paid by client paying
$66,000. In a recent conversation, my clients were told that
the estimated job cost would exceed $95,000.
"Although there was a change order, the amount far exceeds
the 'good faith estimate.'
"Reviewing time records, you have charged 'skilled carpenter'
hourly rates of $37.50 for the simplest of labor work. There
are many discrepancies in the contract versus the actual
amount claimed to be due.
"I am aware that you offered to take away all of your profit
which you claimed is $12,450 and therefore bringing the total
job cost to $83,000. That offer is unacceptable to my client.
"The rude and unacceptable behavior of Mr. Paul Childs on
March 24 of screaming at Mrs. Pommer requires the
undersigned to be involved. You are to have no further
communications with Mr. or Mrs. Pommer.
12
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"If you would like to attempt to resolve this matter short of
litigation, please call to arrange a convenient time to meet Mr.
Pommer and myself at my office.
"If I do not hear from you by Friday, April 3, I will assume you
do not care to resolve this matter amicably and my client will
proceed accordingly."
There is no evidence indicating that either Childs or Granger ever
contacted the Pommers' counsel after receiving that letter. There was no
further contact between the Pommers and Childs and Granger, but Childs
and Granger did return to the Pommers' house to retrieve their tools.
After Childs and Granger left the project site, Bud requested that
the City perform a final inspection of the garage. Bud testified that the
inspection took place on April 21, 2015, and that the garage did not pass
inspection at that time. Evidence was presented indicating that one issue
noted by the City's inspector was the fact that there were exposed rafter
tails that were untreated lumber and that that did not comply with the
applicable building code. The Pommers subsequently hired another
contractor and other companies to repair work done by Granger
Construction and to complete unfinished work on the project. The
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1190525 and 1190580
Pommers paid $16,572.61 to complete the project. Thus, the Pommers
spent a total of $82,572.61 to complete the project.
Subsequently, cracks developed in the bricks on the garage. Bud
contacted James Martin Pitts, a structural engineer, to come look at the
garage. Pitts testified that the cracks indicated a foundational issue.
After some excavation was done, Pitts observed that there was no brick
ledge to support the bricks, which was an error. Childs also testified that
a brick ledge was important and critical.
Pitts further testified that he observed that there was a drainage
issue with the garage, i.e., that water was draining toward the garage;
that building codes require that water be turned away from a structure on
all four sides; that the garage was built too low, so water was directed
toward the garage rather than away from it; that that was a fatal error,
which means that it is virtually impossible or impossible to fix; and that,
although it can be corrected in some situations, it can be very difficult to
correct. He further testified that there were drainage issues with the
breezeway that could be corrected by removing the breezeway and
14
1190525 and 1190580
building it again. Pitts testified that, considering the combined issues
caused by the lack of the brick ledge and the lack of proper drainage, he
would recommend removal of the garage and breezeway.
On January 7, 2016, the Pommers filed a complaint against Childs
and Granger Construction, which they subsequently amended. In their
amended complaint, the Pommers alleged that Childs and Granger
Construction had breached the contract in numerous ways, had breached
the express warranty to perform their work in a workmanlike manner,
had breached various implied warranties, and had made fraudulent
representations to them. They also included a count alleging the tort of
outrage.
On February 29, 2016, Childs and Granger Construction filed their
answer to the amended complaint and a counterclaim. In the
counterclaim, Granger Construction asserted a claim of breach of
contract/unjust enrichment against the Pommers. The Pommers
subsequently filed their answer to the counterclaim.
15
1190525 and 1190580
On October 19, 2017, the Pommers filed a motion for leave to file a
second amended complaint to include a request to pierce the corporate veil
with regard to Granger Construction and to add Granger, in his individual
capacity, as an additional defendant. The Pommers further asserted that
Granger had died and that they intended to file a suggestion of death and
a motion to substitute an appropriate party for Granger. The trial court
granted the motion, and the Pommers filed their second amended
complaint. On October 20, 2017, the Pommers filed a suggestion of death
stating that Granger had died on August 17, 2017. The Pommers
subsequently filed a motion to substitute Melissa, as the administratrix
of Granger's estate, for Granger. The trial court granted that motion.
The trial court subsequently conducted a bench trial. After the
bench trial, the Pommers filed a motion to amend the pleadings to
conform to the evidence. The trial court granted that motion but stated
that it did not intend to allow the Pommers to raise new claims or causes
of action not raised or pleaded in the complaint and amended complaints.
16
1190525 and 1190580
On September 14, 2018, the trial court entered an order. In that
order, it stated:
"This matter came before the Court on the Second
Amended Complaint filed by Harry J. Pommer and Brenda S.
Pommer, Plaintiffs, against Granger Construction Company,
L.L.C., Paul D. Childs, and Daniel Granger, by and through
Melissa T. Granger, as Administratrix of the Estate of Daniel
D. Granger, Defendants; and on the Counterclaim filed by
Granger Construction Company, L.L.C. against the Plaintiffs.
Trial of this matter was held on May 1, 2018 through May 3,
2018. The Court, having received evidence and testimony ore
tenus from the parties and having considered the same, does
find as follows:
"1. Judgment is entered in favor of Plaintiffs
Harry J. Pommer and Brenda S. Pommer and
against Defendants Granger Construction and Paul
D. Childs, jointly and severally, in the amount of
Eighty Two Thousand Five Hundred Seventy Two
Dollars
and
61/l00ths
($82,572.61)
for
compensatory damages plus reasonable attorney's
fees in the amount of $50,062.50 plus the cost of
court.
"2. Plaintiffs Harry J. Pommer and Brenda S.
Pommer stated in their pleadings that they intend
to pierce the corporate veil of Granger Construction
as to Daniel [D.] Granger, its sole owner. The Court
reserves jurisdiction to make a final determination
on the issue of piercing the corporate veil in the
event that Plaintiff pursues such course of action
postjudgment.
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1190525 and 1190580
"3. All claims against Melissa Granger as
Administratrix of the Estate of Daniel Granger are
hereby denied.
"4. Judgment is entered in favor of the
Counterclaim
Defendants
and
against
the
Counterclaim Plaintiffs.
"[5]. Any and all relief requested by the parties that is
not specifically addressed herein is denied."
Granger Construction and Childs originally filed a notice of appeal
from the trial court's September 14, 2018, order. On June 10, 2019, this
Court, by order, dismissed that appeal as arising from a nonfinal
judgment.
On July 29, 2019, Melissa, as administratrix of Granger's estate,
filed an answer to the Pommers' second amended complaint, addressing
the Pommers' request to pierce the corporate veil. The trial court
subsequently conducted a bench trial as to the Pommers' request to pierce
the corporate veil of Granger Construction. On March 12, 2020, the trial
court ruled in favor of Melissa, as the administratrix of Granger's estate,
as to the Pommers' request to pierce the corporate veil of Granger
Construction, thus rendering a final judgment.
18
1190525 and 1190580
Granger Construction and Childs appealed the judgment the trial
court entered in favor of the Pommers to this Court. The Pommers' cross-
appealed the trial court's judgment denying their request to pierce the
corporate veil of Granger Construction.
Standard of Review
" 'Because the trial court heard ore tenus
evidence during the bench trial, the ore tenus
standard of review applies. Our ore tenus standard
of review is well settled. " 'When a judge in a
nonjury case hears oral testimony, a judgment
based on findings of fact based on that testimony
will be presumed correct and will not be disturbed
on appeal except for a plain and palpable error.' "
Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003)
(quoting Allstate Ins. Co. v. Skelton, 675 So. 2d
377, 379 (Ala. 1996)).
" ' "...."
" '...
However,
"that
presumption
[of
correctness] has no application when the trial court
is shown to have improperly applied the law to the
facts." Ex parte Board of Zoning Adjustment of
Mobile, 636 So. 2d 415, 417 (Ala. 1994).'
"Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010)."
Mitchell v. K & B Fabricators, Inc., 274 So. 3d 251, 260 (Ala. 2018).
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1190525 and 1190580
I. Case Number 1190525
A.
Childs argues that he is not liable under a breach-of-contract theory
because he was not a party to the contract.
" ' "The elements of a breach-of-contract claim under Alabama
law are (1) a valid contract binding the parties; (2) the
plaintiffs' performance under the contract; (3) the defendant's
nonperformance; and (4) resulting damages." ' Shaffer v.
Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009) (quoting
Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105 (Ala. 2002))."
Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020).
The contract stated that it was between Granger Construction and
the Pommers, and the contact was signed by Granger and Brenda. It is
undisputed that Childs was not a signatory on the contract, that Childs
was not named in the contract, and that Childs was not an owner or a
member of Granger Construction.
In their brief to this Court, the Pommers assert:
"Granger LLC and CHILDS agree that Granger LLC had
a contract with the POMMERS. CHILDS, however, argues
that he was not a party to the contract; therefore, he is not
liable for breach of contract. CHILDS is wrong.
20
1190525 and 1190580
"CHILDS testified that he was a subcontractor of
Granger LLC for the Pommer job. According to the contract,
which was prepared by MR. GRANGER, 'all work performed
by subcontractors shall be subject to all applicable terms and
conditions of the Contract Documents.' (C. 589). CHILDS
performed work at the POMMERS' house on generally a full
time basis. He was obligated to perform that work pursuant
to the terms of the contract. As discussed, CHILDS and
Granger LLC failed to perform the terms of the contract.
Accordingly, CHILDS and Granger LLC are both liable to the
POMMERS for breach of contract."
(Pommers' brief at p. 33 (capitalization in original).) Paragraph 21 of the
contract, which deals with subcontractors, provides as follows:
"Contractor shall have the right to subcontract any portion of
the work hereunder, and all work performed by subcontractors
shall be subject to all applicable terms and conditions of the
Contract Documents. Contracts between Contractor and
Subcontractors shall (1) require each subcontractor, to the
extent of the work to be performed by the subcontractor, to be
bound to the Contractor by the terms of the Contract
Documents, and to assume toward the Contractor all the
obligations and responsibilities which the Contractor, by
Contract Documents, assumes toward the Owner and
Architect, and (2) allow the Subcontractor the benefit of all
rights, remedies, and redress afforded to the Contractor by
these Contract Documents."
(Emphasis added.) When read in its entirety, it is clear that this
paragraph does not provide that a subcontractor owes any contractual
21
1190525 and 1190580
duties toward the owners of the property. Rather, it provides that the
work performed by subcontractors will be subject to the provisions of the
contract. However, it goes on to provide that contracts between the
contractor and subcontractors will include provisions binding the
subcontractor to the contractor and provisions by which the subcontractor
will assume duties and obligations toward the contractor. Thus, the
Pommers' argument in this regard is without merit and would not support
a finding that Childs was liable to them based upon the a breach-of-
contract theory. Based on the foregoing, we reverse the trial court's
judgment as to Childs and render a judgment in his favor.1
B.
1In the trial court, the Pommers argued that Childs was equitably
estopped from arguing that he was not liable for breach of contract
because, they asserted, he was a de facto contractor for the project. The
Pommers also asserted claims of fraud and the tort of outrage. Because
the trial court did not state the basis for its judgment against him, Childs
addressed the de facto-contractor argument and the Pommers' additional
claims on appeal. However, in their brief to this Court, the Pommers have
not presented any argument that the de facto-contractor argument and
their additional claims actually supported the trial court's judgment
against Childs.
22
1190525 and 1190580
Granger Construction argues that the evidence was insufficient for
the Pommers to prevail on any breach-of-contract claim because the
Pommers allegedly repudiated the contract without performing their
obligation to pay Granger Construction.
"In New Properties, L.L.C. [v. Stewart, 905 So. 2d 797
(Ala. 2004)], supra, this Court addressed the manner in which
a party preserves a challenge to the sufficiency of the evidence
when, in a bench trial, a trial court issues its ruling without
issuing findings of fact. In that case, this Court stated:
" 'Although Rule 52(b)[, Ala. R. Civ. P.,] speaks to
those situations in which a trial court makes
findings of fact, the rule does not indicate what is
to occur when the trial court makes no such
findings. As Justice Lyons has noted:
" ' "If a court makes findings of fact in a
nonjury case, Rule 52(b), Ala. R. Civ. P.,
excuses the losing party from objecting
to the findings or moving to amend
them or moving for a judgment or a new
trial as a predicate for an appellate
attack on the sufficiency of the
evidence. By negative implication, such
steps are required when the court
makes no findings of fact." '
"905 So. 2d at 800 (quoting Ex parte James, 764 So. 2d 557,
561 (Ala.1999) (plurality opinion) (Lyons, J., concurring in the
result)) (emphasis in New Properties). After reviewing
23
1190525 and 1190580
conflicting caselaw on the subject, the Court in New Properties
stated:
" '[W]e hold that, in a nonjury case in which the
trial court makes no specific findings of fact, a
party must move for a new trial or otherwise
properly raise before the trial court the question
relating to the sufficiency or weight of the evidence
in order to preserve that question for appellate
review. See Rule 52(b), Ala. R. Civ. P. ...'
"905 So. 2d at 801-02."
Weeks. v. Herlong, 951 So. 2d 670, 676-77 (Ala. 2006). In this case,
Granger Construction and Childs filed a motion for a judgment as a
matter of law at the close of all the evidence. In that motion, they did not
present any argument that the Pommers had repudiated the contract and
that, therefore, they could not prevail on any breach-of-contract claim.
Additionally, after the trial court entered its judgment, Granger
Construction and Childs did not file any postjudgment motions raising an
argument that the evidence established that the Pommers had repudiated
the contract. Therefore, because this issue is not properly preserved for
appellate review, we will not reverse the trial court's judgment on this
basis.
24
1190525 and 1190580
C.
Granger Construction also argues that the trial court's
compensatory-damages award is clearly erroneous because the Pommers
allegedly did not adequately prove their damages at trial. Although
Granger Construction and Childs filed a motion for a judgment as a
matter of law at the close of all the evidence, they did not raise any
argument that the Pommers had failed to prove their compensatory
damages. Additionally, after the trial court entered its judgment, Granger
Construction and Childs did not file any postjudgment motions in which
they challenged the amount of damages awarded by the trial court or
argued that the Pommers had not presented evidence to establish their
damages in this case. Accordingly, this issue is not properly preserved for
our review and will not support a reversal of the compensatory-damages
award. See Weeks, supra.
D.
Granger Construction and Childs further argue that the trial court
erred in awarding the Pommers attorneys' fees.
25
1190525 and 1190580
1.
First, Childs argues that the trial court erred in assessing attorneys'
fees against him because he was not a party to the contract. We agree.
As we held in Part I.A. of this opinion, Childs was not a party to the
contract and could not be held liable for breaching the contract.
Therefore, we reverse the trial court's judgment assessing attorneys' fees
against Childs.
2.
Granger Construction also argues that the trial court erred in
awarding the Pommers attorneys' fees because, it asserts, there was no
admissible evidence to support the award of attorneys' fees. Before the
trial court entered its judgment, it conducted a hearing discussing the
parties' positions regarding whether attorneys' fees should be included in
a judgment for the prevailing parties. During that hearing, the following
took place:
"[THE COURT:] And how much time do you-all need to
submit your requested attorneys' fees?
26
1190525 and 1190580
"[DEFENSE COUNSEL]: I just need a couple of days for
my bookkeeper to put the invoices together.
"[PLAINTIFFS' COUNSEL]: Yeah. I think a few days is
fine, Your Honor.
"THE COURT: If y'all can get me those. I literally -- I
have got an order I'm about to enter pretty quick, but I can do
that rather quickly. What I'm going to ask you-all -- and I
don't know -- I mean I have got some idea what I'm going to do,
but if we are dealing with attorneys' fees, if y'all could have me
that by the end of next week. Is that okay?
"[DEFENSE COUNSEL]: Sure.
"[PLAINTIFFS' COUNSEL]: That will be fine.
"THE COURT: And to each other by, say, next Friday.
How long would y'all need to review each others in the event
that you did need to file an objection?
"[DEFENSE COUNSEL]: Judge, perhaps -- I'll just
make a suggestion to the Court? If Your Honor wants to enter
a ruling based upon attorneys' fees, we can come back on a
post-trial motion and deal with attorneys' fees at that time.
"Would that be an appropriate way to do it and just
schedule another hearing?
"THE COURT: Is that okay with you, [plaintiffs'
counsel]?
"[PLAINTIFFS' COUNSEL]: Yes, sir.
27
1190525 and 1190580
"THE COURT: Or you want to do --
"[PLAINTIFFS' COUNSEL]: Either way is fine.
"THE COURT: How do you want to do it? Because we
specifically agreed and I recall that we were going to deal with
the attorneys' fees after the fact, and so -- all right. Then what
I'll do is whatever I do. And if I were to include -- if I were to
include reasonable attorneys' fees, then I'll include plus
reasonable attorneys' fees to be established.
"And then y'all can get with Ellen [the trial court's
judicial assistant] and we can find a date to have a hearing or
submit what you need to then.
"[DEFENSE COUNSEL]: So do we email our invoices to
Ellen in PDF format and then carbon copy the other attorneys?
"THE COURT: That's probably the easiest way. And
then if there was an objection, then we can deal with that.
"....
"[THE COURT:] Then, if y'all will get me those, then I
will go ahead and get you-all a ruling. And if we needed to
have an additional date, if y'all just file something and request
a hearing date with Ellen, and make sure we can get it set
within the time prescribed.
"We probably can handle it almost -- if we go that route,
[defense counsel], just whoever files any motions to alter,
amend or vacate, if there are any filed, which I assume that
the non-prevailing party would file. But if they are filed,
maybe we can deal with it through that as well.
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1190525 and 1190580
"And when I do set that when -- assuming they get filed
and assuming that I'm going to set them, we can deal with
them at that stage, provided we get them set. And you know
I will get them set within the time limits that we'll be dealing
with.
"[DEFENSE COUNSEL]: Okay.
"[PLAINTIFFS' COUNSEL]: All right."
Subsequently, the parties emailed their fee invoices to the trial court's
judicial assistant. However, counsel for Granger Construction and Childs
did not file any objection to the information Pommers' counsel provided to
the trial court regarding attorneys' fees. In its judgment, the trial court
ordered Granger Construction and Childs to pay attorneys' fees to the
Pommers. However, counsel for Granger Construction and Childs did not
file a postjudgment motion challenging the award of attorneys' fees.
Therefore, this issue is not properly preserved for our review and will not
support a reversal of the attorney-fee award against Granger
Construction. See Nichols v. Pate, 54 So. 3d 398 (Ala. Civ. App. 2010);
Jones v. Sherrell, 52 So. 3d 527 (Ala. Civ. App. 2010).
E.
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1190525 and 1190580
Finally, Granger Construction asserts that the trial court
erroneously denied its counterclaim seeking compensation for labor,
materials, profit, and overhead that it alleges was due under the contract.
Granger Construction and Childs did not raise any argument in their
motion for a judgment as a matter of law regarding Granger
Construction's counterclaim. In its judgment, the trial court did not make
any findings of fact as to Granger Construction's counterclaim. Rather,
it merely entered a judgment in favor of the Pommers and against
Granger Construction as to the counterclaim. Granger Construction did
not file any postjudgment motions in which it argued that it had
presented sufficient evidence to support its counterclaim. Therefore,
Granger Construction has not preserved this issue for appellate review
See Weeks, supra.
Based on the foregoing, in case number 1190525, we reverse the trial
court's judgment against Childs, including the attorney-fee award against
Childs, and render a judgment in his favor. However, we affirm the trial
court's judgment as to Granger Construction.
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1190525 and 1190580
II. Case Number 1190580
In their cross-appeal, the Pommers argue that the trial court
erroneously denied their request to pierce the corporate veil of Granger
Construction.
"Piercing the corporate veil is not a power that is lightly
exercised. The concept that a corporation is a legal entity
existing separate and apart from its shareholders is well
settled in this state. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536
So. 2d 37 (Ala.1988). Alorna Coat Corp. v. Behr, 408 So. 2d
496 (Ala.1981). The mere fact that a party owns all or a
majority of the stock of a corporation does not, of itself, destroy
the separate corporate identity. Messick v. Moring, 514 So. 2d
892 (Ala. 1987); Forester & Jerue, Inc. v. Daniels, 409 So. 2d
830 (Ala. 1982). The fact that a corporation is
under-capitalized is not alone sufficient to establish personal
liability. Co-Ex Plastics, Inc. v. Alapak, Inc., supra; East End
Memorial Association v. Egerman, 514 So. 2d 38 (Ala. 1987).
To pierce the corporate veil, a plaintiff must show fraud in
asserting the corporate existence or must show that
recognition of the corporate existence will result in injustice or
inequitable consequences. Washburn v. Rabun, 487 So. 2d
1361 (Ala.1986); Cohen v. Williams, 294 Ala. 417, 318 So. 2d
279 (1975).
"....
"... Where the law recognizes one-man corporations, it is
obvious that the law accepts the fact of domination by one
person. See ... Co-Ex Plastics, Inc. v. Alapak, Inc., supra.
Therefore, mere domination cannot be enough for piercing the
31
1190525 and 1190580
corporate veil. There must be the added elements of misuse of
control and harm or loss resulting from it. Messick v. Moring,
supra; Washburn v. Rabun, supra.
"The corporate veil may be pierced where a corporation
is set up as a subterfuge, where shareholders do not observe
the corporate form, where the legal requirements of corporate
law are not complied with, where the corporation maintains no
corporate records, where the corporation maintains no
corporate bank account, where the corporation has no
employees, where corporate and personal funds are
intermingled and corporate funds are used for personal
purposes, or where an individual drains funds from the
corporation. See, e.g., Forester & Jerue, Inc. v. Daniels, supra;
Hamrick v. First National Bank of Stevenson, [518 So. 2d 1242
(Ala. 1987)]; Deupree v. Ruffino, 505 So. 2d 1218 (Ala.1987);
Messick v. Moring, supra; East End Memorial Association v.
Egerman, supra."
Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398, 400-01 (Ala. 1989).
In Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So. 2d 37 (Ala. 1988),
AlaPak, Inc., was a corporation and Gregg Gantt was the sole stockholder
and director and the principal officer of Alapak. This Court included the
following facts about the formation of AlaPak:
"Gantt began a packaging and supply business in 1980,
using the name Alabama Packaging and Supply, and he
operated that business as a sole proprietorship until 1984,
when he incorporated this business as AlaPak, Inc. Upon
incorporation, Gantt transferred all assets and liabilities of
32
1190525 and 1190580
'Alabama Packaging and Supply,' sole proprietorship, to
AlaPak, the corporation. As a result of this transfer, AlaPak
assumed total assets of $591,894.55 and total liabilities of
$580,054.48. The capital stock of the corporation was
$1,000.00 and there existed $10,839.87 in paid-in capital.
Soon after incorporation, AlaPak entered a financing
arrangement with National Acceptance Corporation ('NAC')
and entered loan transactions with First Montgomery Bank."
536 So. 2d at 38.
In July 1985, AlaPak and Co-Ex Plastics, Inc. ("Co-Ex"), entered into
an open-account supplier-purchaser relationship. During the relationship,
Co-Ex sold over $127,000 worth of goods to AlaPak. However, in January
1986, the account was overdue. Subsequently, Co-Ex sued AlaPak and
Gantt to collect the overdue amount. The trial court conducted a bench
trial. This Court set forth the following summary of the evidence that was
presented at trial:
"Evidence was presented at trial indicating that Gantt,
the sole stockholder and director and the principal officer of
AlaPak:
"1) could not produce a stock certificate;
"2) had retained the 'Alabama Packaging and
Supply Company' bank account as AlaPak's bank
account; and
33
1190525 and 1190580
"3) had continued to use the 'Alabama Packaging
and Supply Company' checks because, he stated, he
lost the AlaPak checks.
"It was further shown that Gantt had not signed checks in a
representative capacity and that Gantt also varied the manner
in which he referred to the corporation, i.e., 'AlaPak,' 'Alabama
Packaging and Supply Co.,' and 'Alabama Packaging and
Supply, Inc.'
"AlaPak closed its doors in August 1986, after NAC
withdrew its line of credit. A bankruptcy petition was
prepared thereafter, but was not filed, which disclosed a total
of $391,500.30 owed to unsecured creditors and $110,000.00 in
accounts receivable subject to a security interest in favor of
NAC and inventory of $72,000.00 existing."
Co-Ex Plastics, 536 So. 2d at 38. The trial court entered a judgment in
favor of Co-Ex and against AlaPak. However, it refused to pierce the
corporate veil and entered a judgment in favor of Gantt. Co-Ex filed
postjudgment motions, but the trial court again denied Co-Ex's request for
relief against Gantt. On appeal, Co-Ex argued that Gantt had operated
AlaPak in such a manner that the corporate veil should have been pierced
and Gantt should have been held individually liable for the debts of the
corporation.
34
1190525 and 1190580
"The concept that a corporation is a legal entity existing
separate and apart from those who compose it is a well-settled
rule in the State of Alabama. Cohen v. Williams, 294 Ala. 417,
420, 318 So. 2d 279, 280 (1975) (quoting 18 Am. Jur. 2d
Corporations § 14 at 559 (1965)). It is also a well-settled rule
in this State that the corporate form can be set aside, and the
individual or individuals owning all of its stock and assets can
be treated as the business entity, even in the absence of fraud,
as
a
means
of
preventing
injustice
or
inequitable
consequences. Cohen, 294 Ala. at 421, 318 So. 2d at 281. This
Court has also held:
" 'A separate corporate existence will not be
recognized when a corporation is so organized and
controlled and its business so conducted as to make
it a mere instrumentality of another or the alter
ego of the person owning and controlling it.'
"Woods v. Commercial Contractors, Inc., 384 So. 2d 1076, 1079
(Ala. 1980).
"Co-Ex first contends that AlaPak was merely an
instrumentality of Gantt, and that this was shown by Gantt's
failure to follow corporate formalities in the course of its
business, i.e., the failure of Gantt to produce a stock
certificate; the retention of the Alabama Packaging and Supply
Company bank account, and the continued use of the Alabama
Packaging and Supply Company checks, which were never
shown to have been signed in a representative capacity.
Gantt, on the other hand, argues that Co-Ex knew or should
have known that AlaPak was a corporation and acknowledged,
AlaPak, as such, and therefore, that no fraud can be inferred
from AlaPak's neglect of corporate formalities. We find
[Gantt's] argument persuasive on this issue. We have held
35
1190525 and 1190580
that in the absence of fraud or inequity, the sole shareholder
in a corporation will be protected from individual liability by
the corporate entity, Washburn v. Rabun, 487 So. 2d 1361
(Ala.1986). In this case, the mere fact that minor formalities,
such as those cited by Co-Ex in the business operations of
AlaPak, were not followed does not rise to such a level that the
corporate veil should be pierced. There is no indication in the
record that AlaPak attempted to fraudulently induce Co-Ex
into any contractual arrangements, nor is there any indication
that the ends of justice would be disserved if the corporate veil
were not pierced.
"Co-Ex also argues that AlaPak was under-capitalized
and, therefore, that the corporate veil should be pierced. Co-Ex
suggests that the $1,000.00 of capital stock and the
$300,000.00 business credit line were inadequate to cover the
potential debts of the corporation. Gantt counters by arguing
that AlaPak conformed to the general operating standards of
one-man corporations and argues that Co-Ex did not rely on
any representation regarding AlaPak's financial condition
when it contracted with it, and that Co-Ex initiated an
inadequate inquiry into the financial status of AlaPak. Gantt
further argues that at the time of incorporation, AlaPak's
assets exceeded its liabilities. We find Gantt's argument
persuasive. We recently held in East End Memorial Ass'n v.
Egerman, 514 So. 2d 38 (Ala.1987), that 'a party who has
contracted with a financially weak corporation and is
disappointed in obtaining satisfaction of his claim cannot look
to the dominant stockholder or parent corporation in the
absence of additional compelling facts.' 514 So. 2d at 44,
quoting Tigrett v. Pointer, 580 S.W.2d 375, 382 (Tex. Civ. App.
1978). No evidence was presented showing that Co-Ex
inquired about the status of AlaPak, other than through a
36
1190525 and 1190580
bank credit check, nor was there any evidence that Co-Ex
requested a personal guarantee from Gantt.
"Voluntary creditors of corporations are held to a higher
standard because they 'are generally able to inspect the
financial structure of a corporation and discover potential risks
of loss before any transaction takes place. Consequently,
courts are less sympathetic with voluntary creditors who,
having had the opportunity of inspection, nevertheless elected
to
transact
with
an
undercapitalized
corporation.'
Disregarding the Entities of Closely Held and Parent-
Subsidiary Corporate Structures, 12 Cum. L. Rev. 155, 165
(1981). We, therefore, must affirm the trial court's refusal to
pierce the corporate veil for the reasons advanced by Co-Ex.
"The rule in Alabama as to ore tenus evidence, is, as
stated in Barrett v. Odum, May & DeBuys, 453 So. 2d 729
(Ala.1984), that 'every presumption will be indulged in favor
of the trial court, and its findings will not be disturbed on
appeal unless palpably wrong or clearly erroneous.' Co-Ex
contends that the trial court erred in its reliance on Paddock,
Smith & Aydlotte v. WAAY Television, 410 So. 2d 106 (Ala.
Civ. App. 1982), to decide the issues in this case because, it
says, many evidentiary features distinguish the two cases. We
must disagree. We find the following similarities in Paddock
sufficient to uphold the trial court's reliance on that case:
"1) Paddock, Smith & Aydlotte ('Paddock')
was a duly formed corporation.
"2) No evidence of Paddock's corporate status
was intentionally concealed.
37
1190525 and 1190580
"3) WAAY failed to make adequate inquiries
into the financial status of Paddock.
"Similar factors were present in the instant case. Therefore,
we will not disturb the trial court's use of that precedent as a
yardstick in evaluating the evidence in this case."
Co-Ex Plastics, 536 So. 2d at 38-40.
" '[A] separate legal existence will not be recognized
when a corporation is "so organized and controlled
and its business conducted in such a manner as to
make it merely an instrumentality of another,"
Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 28,
29 So. 2d 298, 302 (1947), or when it is the "alter
ego" of the person owning and controlling it.
Whether the separate legal entity of a corporation
may be "pierced" and personal liability imposed is
"a question of fact treated as an evidentiary matter
to be determined on a case by case basis." Messick
v. Moring, 514 So. 2d 892, 893 (Ala.1987); accord
Deupree v. Ruffino, 505 So. 2d 1218 (Ala.1987).'8
"Ex parte AmSouth Bank of Alabama, 669 So. 2d 154, 156
(Ala. 1995).
"______________________
"8See also R. Thigpen, Alabama Corporation Law § 8:3
(3d ed. 2003) (explaining that our courts do not appear to have
established a consistent line analytically between those
circumstances when a corporation is said to be an 'alter ego' as
opposed to an 'instrumentality'); id. at § 8:7 (discussing
38
1190525 and 1190580
'brother-sister corporations and the theory of "enterprise
entity" ')."
Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396, 408 (Ala.
2013).
Granger Construction was a limited-liability company. The evidence
presented to the trial court indicated that Granger signed the Articles of
Organization creating Granger Construction ("the articles") on April 6,
2007, and that he filed them in the Baldwin Probate Court on April 9,
2007. The articles listed Granger as the registered agent for the company
and listed Granger's home address as the registered office of the company.
The articles also listed Granger as the initial member, organizer, and
manger of the company. Granger was the only listed member of the
company.
Contrary to the assertions in the Pommers' brief to this Court,
Melissa, who was Granger's wife, also introduced into evidence the
operating agreement for Granger Construction that was signed by
Granger on April 6, 2007. Copies of the tax returns for the Grangers and
Granger Construction were also introduced into evidence. Further, copies
39
1190525 and 1190580
of various documents for Granger Construction were entered into
evidence, including copies of Granger Construction's business licenses;
copies of Granger Construction's license from the Home Builders
Licensure Board; copies of 1099-A "Miscellaneous Income" and 1099-B
"Proceeds from Broker and Barter Exchange Transactions" tax forms that
had been issued by Granger Construction; copies of some of Granger
Construction's contracts and change-order forms; a copy of a 2016 workers'
compensation yearly audit for Granger Construction; and a March 25,
2016, certificate of liability insurance for Granger Construction.
Furthermore, evidence was presented indicating that Granger had
consistently held himself out as doing business as Granger Construction
Company, LLC.
The
Pommers
argue
that
Granger
Construction
was
undercapitalized. However, they did not present any evidence as to what
would constitute adequate funding for a single-member limited liability
construction company. Additionally, it is undisputed that the Pommers
40
1190525 and 1190580
did not make any inquiry into Granger Construction or its financial status
before they entered into the contract.
The Pommers argue that the fact that Granger Construction never
conducted any meetings demonstrates that the company disregarded the
corporate form. However, the Pommers have not cited any relevant
authority to support their argument in this regard. The Pommers do not
cite to any provisions of the former Alabama Limited Liability Company
Law, former § 10-12-1 et seq., which was subsequently renumbered as §
10A-5-1.01 et seq., Ala. Code 1975, or its successor, the Alabama Limited
Liability Company Law of 2014, § 10A-5A-1.01 et seq., Ala. Code 1975, to
support its assertion that Granger Construction was required to conduct
any meetings. Rather, they rely solely on this Court's decision in Econ
Marketing, Inc. v. Leisure American Resorts, Inc., 664 So. 2d 869 (Ala.
1994). However, nothing in Econ Marketing addresses the issue whether
a limited-liability company must conduct meetings. Rather, it merely
addresses the failure of a corporation "to keep complete and correct
records of all transactions of the corporation and minutes of the
41
1190525 and 1190580
proceedings of its shareholders and board of directors." Econ Mktg., 664
So. 2d at 870. Therefore, the Pommers' argument in this regard does not
comply with Rule 28(a)(10), Ala. R. App. P.
The Pommers also point to the fact that Granger Construction did
not have any employees. However, the fact that this single-person
limited-liability construction company did not have any employees would
not support piercing the corporate veil in this case. Although Granger
Construction did not have any employees, evidence was presented
indicating that Granger performed work under the contract and that
Granger Construction also hired subcontractors, including Childs, to
perform work under the contract. These facts do not support a finding of
fraud in asserting the corporate existence and do not support a finding
that the recognition of the corporate existence would result in an injustice
or inequitable consequences.
Finally, the Pommers assert that Granger Construction was the
alter ego of Granger. During the hearing on the issue of piercing the
corporate veil, Melissa, Granger's wife and the administratrix of his
42
1190525 and 1190580
estate, testified. Melissa testified that she was never a member, manager,
or officer of Granger Construction, that she never owned any part of
Granger Construction, and that she never held a position with Granger
Construction. Melissa gathered and produced all the documents for
Granger Construction that she could find. Evidence was presented
indicating that Granger Construction maintained a checking account
separate and distinct from the Grangers' household checking account and
from Melissa's separate business account. The Pommers presented
evidence indicating that Granger wrote checks to himself. However,
Melissa testified that those were Granger's paychecks. The Pommers also
presented evidence indicating that there were some checks that were
written to Melissa. Melissa testified that those were some of Granger's
paychecks, that she did the household banking, and that Granger would
write the checks to her so that she could deposit them when he was not
able to go to the bank. The Pommers also assert that Granger routinely
used Granger Construction's bank account to pay personal bills. The
Pommers presented evidence indicating that some of the checks written
43
1190525 and 1190580
on the company's bank account were either for, or appeared to be for,
personal purposes. However, Melissa testified that she did not have
knowledge of what many of those checks were written for or what they
related to. During the Pommers' examination of Melissa, the following
occurred:
"[PLAINTIFFS' COUNSEL:] Okay. Was it unusual for
Mr. Granger to pay personal bills with company checks?
"[MELISSA;] It -- I don't know. I was not party to how
he did his business. I have -- I have a -- I had my own
business, and we discussed how we generally ran our
individual LLCs, but I did not watch over him.
"[PLAINTIFFS' COUNSEL:] Okay. I'm going to call your
attention to -- I took your deposition November 5, 2019; right?
"[MELISSA:] I assume that's the date if you're telling
me. I don't remember specifically.
"[PLAINTIFFS' COUNSEL:] But you did give a
deposition?
"[MELISSA:] I did give a deposition.
"[PLAINTIFFS' COUNSEL:] I call your attention to page
15 and I want to -- I'm going to show it to you. I'm going to
read the question. I want you to read the answer.
44
1190525 and 1190580
"[PLAINTIFFS' COUNSEL:] 'Was it unusual to pay
personal bills out of the Granger Construction, LLC account?'
(As read.)
"[MELISSA:] 'Okay. Not for himself. He counted it as
a draw.' (As read.)
"[PLAINTIFFS' COUNSEL:] So when your deposition
was given, you testified that it was typical for him to pay
personal bills with a personal check?
"[MELISSA:] Yes. But you're asking me if I have
knowledge. I was not there with him when he did it. So, yes,
that was the general way that we both, sole proprietors, run
our businesses, but we count them as draw.
"[PLAINTIFFS' COUNSEL:] What do you mean? Are
you talking about you or him now when you count them as
draw?
"[MELISSA:] I'm talking about how we as a married
couple who each had in his case -- has still, in my case -- a
single member sole proprietor LLC, how we did things on our
own in our businesses.
"[PLAINTIFFS' COUNSEL:] Are you saying that he
counted that as a draw? If he went and bought $50 worth of
groceries for the house, that he counted it as a draw?
"[MELISSA:] If it was for the house, he would have
counted it as a draw. If it was for clients who he wanted to
bring something, then he would have counted it -- I can't speak
to what each and every item was."
45
1190525 and 1190580
Melissa also testified that there were occasions when their household
account was used to pay Granger Construction expenses.
The evidence presented at trial would support a finding by the trial
court that Granger did not ignore the corporate forms of Granger
Construction and that the company was not run as an instrumentality of
or as the alter ego of Granger. Additionally, the evidence presented would
also support a finding by the trial court that the Pommers did not
establish fraud in asserting the corporate existence and did not establish
that the recognition of the corporate existence, under the facts of this case,
would result in an injustice or inequitable consequences. Therefore, the
trial court's denial of the Pommers' request to pierce the corporate veil of
Granger Construction was not plainly and palpably wrong.
Conclusion
Based on the forgoing, in case number 1190525, we affirm the trial
court's judgment as to Granger Construction. However, we reverse the
trial court's judgment as to Childs and render a judgment in favor of
Childs. In case number 1190580, we affirm the trial court's judgment.
46
1190525 and 1190580
1190525 -- AFFIRMED IN PART; REVERSED IN PART; AND
JUDGMENT RENDERED.
1190580 -- AFFIRMED.
Parker, C.J., and Bolin, Bryan, and Mitchell, JJ., concur.
Shaw, Sellers, Mendheim, and Stewart, JJ., concur in the result.
47 | September 3, 2021 |
4202da89-493a-4e68-a007-de455c366ca8 | Ex parte Danny Ray Nichols, Jr. | N/A | 1200439 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200439
Ex parte Danny Ray Nichols, Jr. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Danny Ray Nichols, Jr. v.
State of Alabama) (St. Clair Circuit Court: CC-19-36; CC-19-38; Criminal
Appeals :
CR-18-1236).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
6b042bcc-b8e3-42d4-a6bc-95790dd29e44 | Alabama State Bar v. Amy C. Marshall | N/A | 1200074 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200073
____________________
Alabama State Bar
v.
Christopher M. Kaminski
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200074
____________________
Alabama State Bar
v.
Amy C. Marshall
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
____________________
1200083
____________________
Christopher Mark Kaminski
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200084
____________________
Amy Cauthen Marshall
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
SHAW, Justice.1
1These cases were previously assigned to another Justice; they were
reassigned to Justice Shaw.
2
1200073; 1200074; 1200083; 1200084
In these consolidated appeals, the Alabama State Bar ("the Bar")
appeals from an order of Panel II of the Disciplinary Board of the Alabama
State Bar ("the Board") suspending both Christopher Mark Kaminski and
Amy Cauthen Marshall from the practice of law. Kaminski and Marshall
also each cross-appeal the Board's order. We remand the matters with
directions.
Facts and Procedural History
The material facts in these matters are undisputed: Kaminski,
formerly a judge of the Coffee District Court, and Marshall, an Enterprise
attorney who routinely appeared before the Coffee District Court, secretly
engaged in an extramarital affair, during which Kaminski admittedly both
appointed Marshall as counsel in pending cases and took judicial action
in cases in which Marshall appeared as counsel of record, without
disclosing their relationship to the parties. During the proceedings below,
Kaminski and Marshall married each other and Marshall assumed
Kaminski's last name. To avoid confusion, this opinion will refer to
Marshall by her prior surname, under which the disciplinary matter
against her was originally initiated and by which she is consistently
3
1200073; 1200074; 1200083; 1200084
referred to in the record. Kaminski and Marshall waived the filing of
formal charges against them and entered "blind" pleas in the disciplinary
matters initiated against them by the Bar.2
At the ensuing disciplinary hearing, the Bar recounted the
misconduct to which Kaminski and Marshall had previously pleaded
2Specifically, Kaminski's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 8.4(a) [regarding the
violation, or the attempt to violate the Rules of Professional
Conduct, or knowingly assisting or inducing another to do so],
(d) [regarding engaging in conduct prejudicial to the
administration of justice,] and (g) [regarding engaging in
conduct adversely reflecting on the lawyer's fitness to practice
law], Alabama Rules of Professional Conduct."
Marshall's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 1.7(b) [prohibiting a lawyer's
representation of a client if the representation may be
materially limited by the lawyer's own interest, unless the
client consents after consultation], 8.4(d) [regarding engaging
in conduct prejudicial to the administration of justice], (f)
[prohibiting knowingly assisting a judge in conduct that
violates the Canons of Judicial Ethics,] and (g) [regarding
engaging in conduct adversely reflecting on the lawyer's fitness
to practice law], Alabama Rules of Professional Conduct."
4
1200073; 1200074; 1200083; 1200084
guilty; presented authorities from other states involving allegedly
comparable conduct and standards similar to the Alabama Standards for
Imposing Lawyer Discipline ("the Standards"), each of which resulted in
disbarment or a minimum of two years' suspension; and cited the
particular Standards that it maintained applied in determining
appropriate punishment for the acknowledged misconduct in these
matters.3
Thereafter, Kaminski and Marshall both testified before the Board,
called numerous character witnesses, and presented other evidence.
Primarily, their evidence related that both Kaminski and Marshall were
remorseful for their misconduct; that both were assets to the legal
community within Coffee County; that Kaminski had played only a
limited role in Marshall's appointments and the approval of her related
fee declarations; that Kaminski never showed Marshall any discernible
favoritism; and that both Kaminski, who was required to resign from the
bench as a result of the above-described misconduct, and Marshall had,
3These included Standards 4.3, 4.5, 5.1, 5.2, and 7.0.
5
1200073; 1200074; 1200083; 1200084
before the institution of the disciplinary proceedings, already experienced
"public-sham[ing]" within their local media and community when their
relationship was disclosed.
In summation, the Bar reiterated its belief regarding the applicable
discipline range and argued the following regarding aggravating
circumstances:
"[A]s far as aggravating circumstances, [the Bar would] like
the Board to consider the following: Dishonest or selfish
motive, a pattern of misconduct, and multiple offenses. This
happened over a long period of time. This was not a one-time
thing. It happened over, at least by their own testimony, a
five- or six-month period."
It further argued that the negative publicity that Kaminski and Marshall
cited as a mitigating circumstance actually amounted to evidence of
damage to the integrity of the legal profession and the legal system in the
eyes of the public resulting from their misconduct. The Bar recommended
a minimum of a three-year suspension for both Kaminski and Marshall.
The Board's subsequent order suspended Kaminski from the practice
of law for 180 days and suspended Marshall from the practice of law for
90 days, with Marshall's suspension to begin immediately upon the entry
6
1200073; 1200074; 1200083; 1200084
of the order and Kaminski's suspension to begin 91 days after entry of the
order. In its order, the Board recounted the specific rules of the Alabama
Rules of Disciplinary Procedure that Kaminski and Marshall were charged
with violating and also detailed, without reference to any supporting
Standard on which the Board relied, the Board's determination of
suspension as the "appropriate discipline."
The order included, without reference to any evidentiary finding on
which the Board relied, the Board's conclusions as to the existence of each
individual aggravating and mitigating circumstance prescribed in
Standard 9.0 and a corresponding indication that each circumstance
either did or did not exist for Kaminski or for Marshall. More specifically,
the Board found the existence of only two aggravating circumstances:
that both Kaminski and Marshall had exhibited dishonest or selfish
motives and that each possessed substantial experience in the practice of
law. The Board found the existence of the following mitigating
circumstances: that neither Kaminski nor Marshall had a prior
disciplinary record; that both had made a timely, good-faith effort to
rectify any consequences of their misconduct; that both had provided full
7
1200073; 1200074; 1200083; 1200084
disclosure and cooperation to the Board during the disciplinary
proceedings; and that both had exhibited remorse for their misconduct.
The Bar appealed, and Kaminski and Marshall cross-appealed.
Standard of Review
" 'The standard of review applicable to an
appeal from an order of the Disciplinary Board is
"that the order will be affirmed unless it is not
supported by clear and convincing evidence or
misapplies the law to the facts." Noojin v. Alabama
State Bar, 577 So. 2d 420, 423 (Ala.1990), citing
Hunt v. Disciplinary Board of the Alabama State
Bar, 381 So. 2d 52 (Ala.1980).'
"Davis v. Alabama State Bar, 676 So. 2d 306, 308 (Ala.1996)."
Cooner v. Alabama State Bar, 59 So. 3d 29, 37 (Ala. 2010).
Discussion
On appeal, the Bar argues that the Board's discipline was so lenient
as to be "manifestly unjust" under the Standards, which, it argues,
mandate, at a minimum, suspensions lasting several years. In their cross-
appeals, Kaminski and Marshall argue that the Board erred, on various
grounds, in imposing their respective terms of suspension and in failing,
instead, to impose lesser punishments under the applicable Standards.
8
1200073; 1200074; 1200083; 1200084
Both the Bar and Kaminski and Marshall, in support of their respective
claims of error, challenge certain of the Board's findings as to the
existence of aggravating and mitigating circumstances as clearly
erroneous. See Tipler v. Alabama State Bar, 866 So. 2d 1126 (Ala. 2003)
(explaining that the "clearly erroneous" standard of review applies to the
findings of fact of the Board), and Alabama State Bar Ass'n v. Dudley, 95
So. 3d 777, 779-80 (Ala. 2012) (observing that a finding is "clearly
erroneous" when, although there is evidence to support it, this Court,
based on the evidence, is left with the definite and firm conviction that a
mistake has been made).
Rule 4.2(b)(6), Ala. R. Disc. P., provides, in part:
"The Disciplinary Hearing Officer shall make written findings
of fact and conclusions of law as directed by the Disciplinary
Board, which shall be captioned 'Report and Order.' ....
"....
"(C) The Report and Order shall contain:
"(i)
A
finding
of
fact
and
conclusion of law as to each allegation
of misconduct, which, upon acceptance
by the Disciplinary Board, shall enjoy
the same presumption of correctness as
9
1200073; 1200074; 1200083; 1200084
the judgment of a trier of fact in a
nonjury civil proceeding in which
evidence has been presented ore tenus;
"(ii) A finding as to whether the
respondent attorney is guilty or not
guilty of the misconduct charged; [and]
"(iii) A finding as to the discipline
to be imposed, with reference, where
appropriate, to the Alabama Standards
for Imposing Lawyer Discipline."4
(Emphasis added.)
All parties take issue with the Board's findings as to the existence
of various aggravating and mitigating circumstances. The Bar contends
that the Board erroneously failed to find additional aggravating
circumstances and also improperly found the existence of certain
mitigating circumstances. Both Kaminski and Marshall contend that the
Board's findings as to the existence of each aggravating circumstance were
correct, but they assert that the Board erroneously failed to find the
4Although findings and conclusions regarding each allegation of
misconduct and guilt are absent from the Board's order, presumably the
Board determined that such findings and conclusions were unnecessary
in light of the guilty pleas.
10
1200073; 1200074; 1200083; 1200084
existence of at least two additional mitigating circumstances that, they
say, applied to each of them. The Bar also maintains that the Board's
order is legally insufficient either to demonstrate the relation of the
discipline imposed to the allegations of misconduct to which Kaminski and
Marshall pleaded guilty and/or to allow for meaningful appellate review.
More specifically, it contends that, in disciplining Kaminski and Marshall,
the Board failed to consider, to follow, or to cite to the relevant Standards
supporting that discipline.
With regard to Bar disciplinary proceedings, this Court has two
distinct roles: one stemming from our independent duties arising from
rules authorizing appellate review of orders entered in disciplinary
proceedings and one from our inherent authority to supervise the Bar. In
Simpson v. Alabama State Bar, 294 Ala. 52, 56, 311 So. 2d 307, 309
(1975), this Court stated that the Board of Bar Commissioners, which
appoints the members of the Board, see Rule 4, Ala. R. Disc. P., "was
created in aid of this [C]ourt," which "retains the power to ... inquire into
the merits of any disciplinary proceeding, and to take any action it sees fit
in such matters." (Emphasis added.) Further, this Court "in any case of
11
1200073; 1200074; 1200083; 1200084
suspension or disbarment from practice ... may ... inquire into the merits
of the case and take any action agreeable to its judgment." § 34-3-43(a)(5),
Ala. Code 1975.
Based on the record before us and considering the evidence adduced
in the underlying disciplinary proceedings, it is unclear to this Court how
-- or more precisely based on what evidence -- the Board could have
reached some of its findings regarding the existence or nonexistence of
certain aggravating and mitigating circumstances. More critical than the
absence of specific underlying factual findings, though the Board's order
also omits, in "determin[ing] the appropriate discipline in this matter,"
reference to any supporting Standards pursuant to which that discipline
was allegedly imposed -- as Rule 4.2(b)(6)(C)(iii) specifically requires. The
Board had an independent duty to comply with Rule 4.2, and this Court,
which is called upon to approve the Board's actions, is unable to do so in
the present matters without either further clarification or additional
information. The indicated omissions prevent this Court from engaging
in the review necessary to determine whether each unexplained finding
enumerated by the Board and recounted above is " ' "supported by clear
12
1200073; 1200074; 1200083; 1200084
and convincing evidence" ' " or to consider, based on those findings, the
propriety of the Board's disciplinary sanctions. Cooner, 59 So. 3d at 37.
This Court's precedent suggests that remanding the matters for the entry
of an order containing the necessary findings is an appropriate remedy in
such cases. See Cooner, 59 So. 3d at 39. See also Cooner v. Alabama
State Bar, 145 So. 3d 1 (Ala. 2013) (remanding a second time to address
similar deficiencies). Cf. Alabama State Bar v. R.G.P., 988 So. 2d 1005
(Ala. 2008) (vacating an order of the Board of Disciplinary Appeals of the
Alabama State Bar because the order did not provide the basis for
reversing a disciplinary decision of the Board).
Conclusion
The parties have raised issues regarding whether the Board erred
in its findings as to the existence of aggravating and mitigating
circumstances. Because the Board's order does not provide a sufficient
explanation of its holdings so as to allow meaningful review under Rule
12(f), Ala. R. Disc. P., and § 34-3-43(a)(5), Ala. Code 1975, we remand the
matters for the Board to issue a new order that specifically provides, as to
each finding by the Board concerning the existence of an aggravating or
13
1200073; 1200074; 1200083; 1200084
mitigating circumstance, the evidentiary basis on which the Board relied
in reaching its conclusion and that references, as provided in Rule
4.2(b)(6)(C)(iii), the supporting Standards on which the Board relied in
determining that the terms of suspension imposed were appropriate. See
Cooner, 59 So. 3d at 39. The Board shall make due return to this Court
within 42 days of the issuance of this opinion.
1200073 -- REMANDED WITH DIRECTIONS.
1200074 -- REMANDED WITH DIRECTIONS.
1200083 -- REMANDED WITH DIRECTIONS.
1200084 -- REMANDED WITH DIRECTIONS.
Parker, C.J., and Bolin, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Wise, Bryan, and Sellers, JJ., concur in the result.
14 | September 3, 2021 |
44834c85-5ad3-41fc-bbdd-e45b4bf92cf2 | Ex parte Hillard and Warr. | N/A | 1200452 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200452
_________________________
Ex parte Deborah Hillard and Holland Hillard Warr
PETITION FOR WRIT OF MANDAMUS
(In re: Deborah Hillard
v.
Rik Tozzi)
(Jefferson Circuit Court, CV-16-312)
SELLERS, Justice.
Deborah Hillard and Holland Hillard Warr jointly petitioned this
Court for a writ of mandamus, raising numerous issues. We ordered
1200452
answers and briefs on one issue raised by Warr: whether the Jefferson
Circuit Court erred in denying her summary-judgment motion on the
counterclaim brought against her by her former husband, Rik Tozzi, which
Warr asserts is barred by principles of res judicata. Warr specifically
requests that we issue the writ of mandamus directing the circuit court to
grant her summary-judgment motion. We deny the petition as to that
issue. Moreover, because, in our order of April 28, 2021, we ordered
answers and briefs as to only that one issue, we implicitly denied the
petition as to the other issues raised by Hillard and Warr. See Ex parte
Carson, 945 So. 2d 448, 449 (Ala. 2006).
Warr and Tozzi married in July 2011. Shortly before their marriage,
Warr's house was destroyed by a tornado. Warr used insurance proceeds
from the loss to purchase and begin remodeling a house in which she and
Tozzi planned to live. It appears that title to the new house was vested
solely in Warr's name.
Apparently the insurance proceeds were insufficient to promptly
complete the remodeling, and, in September 2012, Warr's mother,
Deborah Hillard, sent Tozzi an email indicating that Hillard was going to
2
1200452
provide $140,000 to "tide [Warr] over." Attached to the email was a draft
promissory note providing that the funds were to be repaid to Hillard
within 90 days. Although the original draft of the promissory note
identified both Warr and Tozzi as borrowers, Tozzi removed Warr's name
and accompanying signature line and signed his name to the promissory
note as the sole borrower. According to Tozzi, Hillard represented to him
when she sent the draft promissory note that she needed the promissory
note executed immediately for tax purposes, that she had been unable to
locate Warr to obtain her signature, that Tozzi would not personally have
to repay the loan, and that the loaned funds would be repaid to Hillard
from the proceeds from the eventual sale of the house.
Thereafter, Hillard arranged for $140,000 to be transferred from a
trust, of which Hillard was a beneficiary, to a bank account held jointly by
Hillard and Warr. The money was then transferred to a different bank
account also held jointly by Hillard and Warr, which the parties have
referred to as the "house account." Funds in the house account were used
to pay for the remodeling of Warr's new house. Tozzi had no ownership
interest in either of the referenced bank accounts or the house.
3
1200452
In February 2014, Tozzi initiated divorce proceedings in the
Tuscaloosa Circuit Court. During those proceedings, Tozzi asserted that
he should not be required to repay the money allegedly due Hillard
pursuant to the promissory note because the funds had been used solely
to improve Warr's house and because he had contributed his own funds
toward those improvements. He asked the domestic-relations court to
treat the funds allegedly due under the promissory note as a joint marital
debt and to order them to be repaid from the proceeds from the sale of
Warr's house. The domestic-relations court, however, declined Tozzi's
request and, in April 2019, entered a divorce judgment declaring in part
that "each party shall be liable for any debts in his or her own name." It
appears that that portion of the divorce judgment was based on a
prenuptial agreement entered into by Tozzi and Warr, which made each
party responsible for his or her personal debts.
During the pendency of the divorce proceedings, Hillard initiated a
collections action against Tozzi in the Tuscaloosa Circuit Court. She
stated causes of action alleging breach of the promissory note and money
had and received. At some point, Hillard's action was transferred to the
4
1200452
Jefferson Circuit Court where, in December 2016, Tozzi filed a
counterclaim against Hillard. He also added Warr as an additional
counterclaim defendant at that time.
Pursuant to his counterclaim, Tozzi alleged that Hillard had
fraudulently induced Tozzi to execute the promissory note by
misrepresenting that he would not have to repay the money loaned, by
misrepresenting that Hillard needed a promissory note only for tax
purposes, and by misrepresenting that Hillard had been unable to locate
Warr to obtain her signature on the promissory note. Tozzi also asserted
that Hillard had fraudulently suppressed the fact that the money would
be deposited into a bank account held jointly by Hillard and Warr.
Additionally, Tozzi alleged that Warr had conspired with Hillard to
fraudulently induce Tozzi to sign the promissory note as the sole borrower
and had fraudulently suppressed the fact that the money was deposited
into a bank account held by Warr and Hillard.1
1Tozzi later amended his counterclaim to allege that Hillard had
been unjustly enriched because the loaned funds had been deposited in
her own bank account.
5
1200452
Warr moved for a summary judgment on Tozzi's counterclaim,
arguing in part that it is barred by principles of res judicata based on the
earlier divorce proceedings. The trial court denied Warr's motion, and she
timely filed the instant petition for a writ of mandamus.
"A petition for a writ of mandamus is an appropriate
method by which to seek this Court's review of the denial of a
motion to dismiss or for a summary judgment predicated on
the doctrine of res judicata. Ex parte LCS Inc., 12 So. 3d 55, 56
(Ala. 2008) (citing Ex parte Sears, Roebuck & Co., 895 So. 2d
265 (Ala. 2004)). See also Ex parte Jefferson Cnty., 656 So. 2d
382 (Ala. 1995).
" 'The standard governing our review of an
issue presented in a petition for the writ of
mandamus is well established:
" ' "[M]andamus
is
a
drastic
and
extraordinary writ to be issued only
where there is (1) a clear legal right in
the petitioner to the order sought; (2)
an
imperative
duty
upon
the
respondent to perform, accompanied by
a refusal to do so; (3) the lack of another
adequate remedy; and (4) properly
invoked jurisdiction of the court." '
"Ex parte Cupps, 782 So. 2d 772, 774-75 (Ala. 2000) (quoting
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989))."
Ex parte Webber, 157 So. 3d 887, 891 (Ala. 2014).
6
1200452
"Res judicata and collateral estoppel are two closely
related, judicially created doctrines that preclude the
relitigation of matters that have been previously adjudicated
or, in the case of res judicata, that could have been adjudicated
in a prior action.
" 'The doctrine of res judicata, while actually
embodying two basic concepts, usually refers to
what commentators label "claim preclusion," while
collateral estoppel ... refers to "issue preclusion,"
which is a subset of the broader res judicata
doctrine.'
"Little v. Pizza Wagon, Inc., 432 So. 2d 1269, 1272 (Ala. 1983)
(Jones, J., concurring specially). See also McNeely v. Spry
Funeral Home of Athens, Inc., 724 So. 2d 534, 537 n.1 (Ala.
Civ. App. 1998). In Hughes v. Martin, 533 So. 2d 188 (Ala.
1988), this Court explained the rationale behind the doctrine
of res judicata:
" 'Res judicata is a broad, judicially developed
doctrine, which rests upon the ground that public
policy, and the interest of the litigants alike,
mandate that there be an end to litigation; that
those who have contested an issue shall be bound
by the ruling of the court; and that issues once
tried shall be considered forever settled between
those same parties and their privies.'
"533 So. 2d at 190. The elements of res judicata are
" '(1) a prior judgment on the merits, (2) rendered
by a court of competent jurisdiction, (3) with
substantial identity of the parties, and (4) with the
same cause of action presented in both actions.'
7
1200452
"Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala.
1998). 'If those four elements are present, then any claim that
was, or that could have been, adjudicated in the prior action is
barred from further litigation.' 723 So. 2d at 636. Res judicata,
therefore, bars a party from asserting in a subsequent action
a claim that it has already had an opportunity to litigate in a
previous action."
Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516-17
(Ala. 2002).
Warr has not shown that, in the divorce action, Tozzi asserted or
fully litigated the allegedly fraudulent acts and omissions surrounding the
advent of the promissory note. It does not appear that Tozzi's tort-based
assertions in the present case, namely, that Warr suppressed material
information and participated in a conspiracy to fraudulently induce him
to sign the promissory note as the sole borrower, were made in the divorce
action or addressed in the divorce judgment, which made no specific
mention of the promissory note. Even so, Warr asserts that the doctrine
of res judicata precludes a party from litigating not only matters that have
been previously adjudicated, but also matters that could have been
adjudicated in a prior action. This Court does not doubt that the
domestic-relations court could have taken into account Tozzi's fraud and
8
1200452
conspiracy allegations, had he made them, in exercising its discretion in
dividing the parties' marital property and debt. See Coleman v. Coleman,
566 So. 2d 482, 485 (Ala. 1990) (indicating that, in a divorce action, the
trial court "can consider the conduct of the parties during the marriage
when awarding alimony and dividing the marital property"). According
to Warr, because Tozzi could have made his fraud and conspiracy
allegations in the divorce action, he is barred from raising them as tort
claims in the present case.
Warr bears the burden in seeking a writ of mandamus. Ex parte
Glover, 801 So. 2d 1, 6 (Ala. 2001) ("The petitioner bears the burden of
proving each of [the] elements [establishing entitlement to mandamus
relief] before the writ will issue."). In her petition, Warr does not provide
meaningful discussion of precedent dealing specifically with the ability of
a party in a divorce action to pursue tort claims in a separate action
against the other party to the divorce action. For example, in Coleman,
supra, this Court held that a former wife was barred from suing her
former husband in tort based on an allegation that he had infected her
with a sexually transmitted disease during their marriage because she
9
1200452
had entered into a settlement agreement in connection with previous
divorce proceedings, which was incorporated into the parties' final divorce
judgment, that provided that each party released the other from "any and
all claims and demands." 566 So. 2d at 483. The Court in Coleman noted
as follows regarding the state of the law with respect to a party's ability
to sue his or her former spouse based on acts or omissions that occurred
during the marriage:
"The present state of the law in Alabama concerning the
issue of whether a wife is barred from bringing a tort action
against her former husband for acts that occurred during their
marriage is gleaned from a well-established line of cases. See
Ex parte Harrington, 450 So. 2d 99 (Ala. 1984); Jackson v.
Hall, 460 So. 2d 1290 (Ala. 1984); Weil v. Lammon, 503 So. 2d
830 (Ala. 1987); and Smith v. Smith, 530 So. 2d 1389 (Ala.
1988).
"In Ex parte Harrington, 450 So. 2d 99 (Ala. 1984), we
permitted a wife to file a tort action for assault and battery in
one county, even though she had filed a divorce complaint in
another county. In her tort action she alleged the same
operative facts concerning the violence perpetrated on her by
her former husband that she had alleged in her divorce action.
The tort action was filed before a final judgment was entered
in the divorce case, there was no settlement agreement of the
parties in the case, and the issue of assault and battery had
not been completely litigated.
10
1200452
"In Jackson v. Hall, 460 So. 2d 1290 (Ala. 1984), we did
not allow a wife to pursue a tort action for assault and battery
against her former husband. Prior to filing her tort action, she
had entered into a settlement agreement in the divorce action
in full and final settlement of 'all property matters and other
matters between the parties.' In Jackson, we said:
" 'The question here, however, is whether or not
that action is barred under the material before the
trial court on the summary judgment motion. The
answer to this question depends upon the
construction of the agreement of the parties and
the effect of the divorce decree.
" '....
" 'This agreement was merged into the divorce
decree and thus became a part of that decree, final
and not subject to modification. Thus, the question
of liability for a pre-existing cause of action for an
assault by one spouse against the other was
decided in the divorce action.'
"460 So. 2d at 1292 (citations omitted).
"In Weil v. Lammon, 503 So. 2d 830 (Ala. 1987), we did
not allow a wife to pursue a tort action for fraud and
misrepresentation against her former husband. We noted that
the wife had asserted the alleged fraud and misrepresentation
in support of her claim for alimony, and we held that the wife
was barred by reason of the principle of res judicata. We
expressly noted that Weil did not overrule Ex parte
Harrington, but left open a field of operation where there had
not been a settlement of all claims by the parties, or a claim
11
1200452
fully litigated in a divorce case that had proceeded to a final
judgment.
"Finally, in Smith v. Smith, 530 So. 2d 1389 (Ala. 1988),
we did not allow a wife to pursue a tort action for assault and
battery against her former husband. The tort action was filed
before a final judgment in the divorce case was entered.
However, the parties had entered into extensive settlement
negotiations, and the trial judge was aware of the fact that the
former husband was attempting to provide for his former
wife's medical expenses. In light of the circumstances of the
case, we held that the former wife was estopped from
relitigating matters that were settled in the divorce action. 530
So. 2d at 1391.
"Those cases, read together, do not establish a general
rule that a divorce action routinely precludes a former spouse
from suing the other in tort based upon acts that occurred
during the marriage. Rather, each case must be examined on
its own facts and circumstances."
566 So. 2d at 484-85. See also Ex parte Howle, 776 So. 2d 133 (Ala. 2000)
(discussing Harrington, Jackson, Weil, Smith, and Coleman and
concluding that a former wife was precluded from pursuing a tort claim
alleging assault and battery against her former husband because she had
expressly raised the particular instance of assault and battery in support
of her claim for alimony in the divorce action, had been awarded
compensation by the domestic-relations court for medical expenses
12
1200452
incurred because of the assault and battery, and had accepted payment of
that award by the former husband).
In a special concurrence in Weil v. Lammon, 503 So. 2d 830 (Ala.
1987), Justice Adams noted his "opinion that actions for divorce are sui
generis" and that "[t]o rule that in every divorce case a party's cause of
action must be litigated in that proceeding, of necessity, would deny the
right to trial by jury." 503 So. 2d at 832 (Adams, J., concurring specially).
In Osborne v. Osborne, 216 So. 3d 1237 (Ala. Civ. App. 2016), the Court
of Civil Appeals held that a former wife was not barred from pursuing a
tort action alleging assault and battery against her former husband
because, even though she had presented evidence of the assault and
battery in a prior divorce action, she had not sought damages in the
divorce action aimed at compensating her for injuries she had suffered as
a result of the assault and battery, the assault and battery claim had not
been "fully litigated in the divorce action," and the domestic-relations
court had not awarded the former wife compensation for her injuries. The
court in Osborne also pointed to Justice Adams's special concurrence in
Weil regarding the right to a jury trial in tort actions and concluded that
13
1200452
"a divorcing spouse should not be required to include tort claims in a
divorce action." 216 So. 3d at 1246. See also Abbott v. Williams, 888 F.2d
1550, 1554 (11th Cir. 1989) (concluding that "Alabama precedent does not
establish a bright-line rule that a divorce judgment automatically
precludes one former spouse from suing the other in tort based upon
conduct which occurred during the marriage," that "each such case [must]
be examined on its own facts and circumstances," and that "a case is
within the 'field of operation' left open by [Ex parte] Harrington[, 450 So.
2d 99 (Ala. 1984),] if a settlement agreement, merged into a final divorce
judgment, did not cover the tort claim, or if all elements of the tort claim
were not fully litigated and decided in the divorce action, even though the
divorce action has proceeded to final judgment").
Thus, Alabama has a line of precedent dealing specifically with
whether a former spouse can pursue tort claims against his or her former
spouse based on acts or omissions that occurred during the marriage. In
her petition for a writ of mandamus, Warr does not discuss any of that
precedent. The only arguably relevant divorce-related case Warr cites in
her petition is Turenne v. Turenne, 884 So. 2d 844, 849 (Ala. 2003), which
14
1200452
she quotes only for the proposition that "fraud actions ... are within the
ancillary jurisdiction of the domestic relations division" of a circuit court.
But she provides no discussion of the details of Turenne, which involved
assertions of fraudulent inducement and suppression in connection with
a divorce settlement agreement that had been incorporated into a divorce
judgment.
In her reply brief, Warr acknowledges Weil, 503 So. 2d at 832, which
she quotes for the proposition that "there is no reason why all known
claims between spouses in a divorce action should not be settled in that
litigation," and Ex parte Howle, 776 So. 2d at 135, which she quotes for
the proposition that "[t]he first three elements [of the doctrine of res
judicata] are clearly satisfied -- the divorce judgment is a prior judgment
on the merits rendered by a court of competent jurisdiction in an action
between the same parties." But Warr does not provide meaningful
discussion of the precedent she cites or the other relevant precedent noted
above. She has not established that the instant case is controlled by
opinions holding that a former spouse was barred from pursuing a tort
claim against the other former spouse based on conduct that occurred
15
1200452
before a divorce. For example, she has not shown that the allegedly
tortious acts and omissions surrounding the execution and delivery of the
promissory note were fully litigated in the divorce action or that Tozzi's
tort allegations were resolved by a settlement agreement entered in the
divorce action or by the final divorce judgment.
The writ of mandamus is a drastic and extraordinary remedy.
Webber, 157 So. 3d at 891. It should be issued only where the petitioner
has demonstrated a clear legal right to the relief sought below. Id.
Because Warr has not demonstrated a clear legal right to a judgment in
her favor on Tozzi's counterclaim based on principles of res judicata, we
deny the petition.
PETITION DENIED.
Parker, C.J., and Wise, Bryan, Stewart, and Mitchell, JJ., concur.
Bolin, Shaw, and Mendheim, JJ., concur in the result.
16 | September 3, 2021 |
e2249666-d0e3-44cd-bb71-5598619b27c5 | Ex parte M.L. | N/A | 1200735 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200735
Ex parte M.L. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: M.L. v. K.J.) (Lauderdale Juvenile Court:
JU-11-190.02; Civil Appeals :
2190943).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
8eb37903-c844-4a10-a798-8e8c7757b4f2 | Ex parte David Lee Weatherspoon. | N/A | 1200770 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200770
Ex parte David Lee Weatherspoon. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: David Lee Weatherspoon
v. State of Alabama) (Tuscaloosa Circuit Court: CC17-3068.60; Criminal
Appeals :
CR-20-0272).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
43ab3f6e-4dc9-431f-a2b4-5f7b0a3d9c9b | Ex parte M.N. | N/A | 1200620 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1200620
Ex parte M.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: M.N. v. Franklin County Department of Human
Resources) (Franklin Juvenile Court: JU-19-21.03; Civil Appeals : 2200246).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 27, 2021:
Writ Denied. No Opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, Bryan,
Mendheim, and Mitchell, JJ., concur. Sellers and Stewart, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
c8e172ec-7aa0-447a-9365-96298f056992 | Ex parte Marcel Dupre Cox. | N/A | 1200721 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200721
Ex parte Marcel Dupre Cox. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Marcel Dupre Cox v. State of
Alabama) (Madison Circuit Court: CC-18-5098.70; Criminal Appeals :
CR-20-0082).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
7471f310-fd51-4708-850e-748a62889f55 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200105 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200105
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Stratcap
Investments, Inc. v. Michael Thomas Scoggins, as special Conservator for
the estates of Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900100).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Denied. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
86717e54-31af-42af-b17e-84ead489064d | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200106 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200106
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Stratcap
Investments, Inc. v. Michael Thomas Scoggins, as special Conservator for
the estates of Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900101).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Denied. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
a4e8ae3d-20d0-4c2c-93b2-6cb2640281d0 | Ex parte Gregory Ray Steenson. | N/A | 1200697 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 22, 2021
1200697
Ex parte Gregory Ray Steenson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Gregory Ray Steenson v.
State of Alabama) (Morgan Circuit Court: CC18-1086; Criminal Appeals :
CR-19-1033).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 22, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 22nd day of October, 2021.
Clerk, Supreme Court of Alabama | October 22, 2021 |
20e29395-b10b-4286-be79-2a674e8b4593 | Ex parte Daniel Ray Ash. | N/A | 1200766 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200766
Ex parte Daniel Ray Ash. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Daniel Ray Ash v. State of
Alabama) (Tallapoosa Circuit Court: CC-82-49.60; Criminal Appeals :
CR-19-0586).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
3814b9da-0234-482d-adb9-0d11c5514110 | Ex parte Wayde Slocumb. | N/A | 1200751 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200751
Ex parte Wayde Slocumb. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Wayde Slocumb v. State of
Alabama) (Madison Circuit Court: CC-18-5218; Criminal Appeals :
CR-19-0574).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
ee1ad5b0-9138-48fe-be51-ba3d5465e22f | Ex parte Deandre Cooper. | N/A | 1200583 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200583
Ex parte Deandre Cooper. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Deandre Cooper v. State of
Alabama) (Jefferson Circuit Court: CC-04-4055.65; CC-04-4056.64; Criminal
Appeals : CR-20-0200).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
bccfdfdc-b09f-4da9-94e0-147007f684b4 | Ex parte Phillip George Parker. | N/A | 1200619 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 20, 2021
1200619
Ex parte Phillip George Parker. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Phillip George Parker v.
State of Alabama) (Covington Circuit Court: CC-18-507; Criminal Appeals :
CR-19-0860).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 20, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 20th day of August, 2021.
Clerk, Supreme Court of Alabama | August 20, 2021 |
e90435d4-e003-41f1-aa13-89d76e282234 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200103 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200103
Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Stratcap
Investments, Inc. v. Michael Thomas Scoggins, as special Conservator for
the estates of Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900098).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Denied. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
c3f202f2-0df0-4718-b6b6-3bc30a35739e | Ex parte Utilities Board of the City of Roanoke. | N/A | 1200307 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200307
_________________________
Ex parte Utilities Board of the City of Roanoke
PETITION FOR WRIT OF MANDAMUS
(In re: Charles Ester and Evella Ester
v.
Crawford Grading and Pipeline, Inc.; John Landers, Jr.; and
Utilities Board of the City of Roanoke)
(Randolph Circuit Court, CV-15-900006)
STEWART, Justice.
1200307
The Utilities Board of the City of Roanoke ("the Utilities Board")
petitions this Court for a writ of mandamus directing the Randolph
Circuit Court to vacate an order purporting to reinstate a case that the
circuit court had previously disposed of. Because we conclude that the
circuit court lacked jurisdiction to issue the order purporting to reinstate
the case, we grant the petition and issue the writ.
Facts and Procedural History
In February 2015, Charles Ester and Evella Ester filed a complaint
against Crawford Grading and Pipeline, Inc. ("Crawford Grading"), and
John Landers, Jr., alleging property damage and personal injuries arising
out of two alleged occurrences in which sewage had backed up into the
Esters' house. Regarding Crawford Grading, the complaint asserted claims
of negligent or wanton construction, maintenance, or repair of the
involved sewer line. Regarding Landers, who sold the house to the Esters,
the complaint asserted claims of fraudulent suppression, breach of
contract, and breach of the warranty of habitability. In April 2015, the
Esters filed their first amended complaint, adding the City of Roanoke as
a defendant and alleging claims of negligence and wantonness related to
2
1200307
the second alleged sewer backup. Subsequently, the Esters filed their
second amended complaint, substituting the Utilities Board for the City
of Roanoke as a defendant.
In June 2017, the Esters' first set of attorneys withdrew. On August
4, 2017, the circuit court entered an order dismissing Landers from the
case. The Esters retained new counsel on August 9, 2017. Nearly two
years later, the Utilities Board filed a motion for a summary judgment on
August 8, 2019, and the circuit court set the hearing on the motion for
August 28, 2019. On August 15, 2019, Crawford Grading, the only other
remaining defendant, also filed a motion for a summary judgment, which
the circuit court also set for a hearing on August 28, 2019.
On August 26, 2019, the Esters' second set of attorneys withdrew.
The Esters were apparently unaware of the hearing set for August 28. The
circuit court proceeded with the hearing, and the Esters were not present
in court. Neither the Esters' second set of attorneys nor the Esters
themselves had filed a response to the summary-judgment motions. On
September 9, 2019, the circuit court entered an order ("the September 9
order") that stated:
3
1200307
"This matter coming before court on defendant's Motions
for Summary Judgment. Upon call of the case the Plaintiff
failed to appear; counsel for the defendant was present. Based
on the Plaintiff's failure to appear the Defendant's Motion for
Summary Judgment is granted and this case is dismissed. The
Plaintiff is given forty-five (45) days from the date[] of this
order to request the case be reinstated."
On October 22, 2019, 43 days after the circuit court entered the
September 9 order, the Esters, acting without counsel, filed a motion to
reinstate the case. In that motion, the Esters stated that they had used
the time between the entry of the September 9 order and the filing of the
motion to reach a settlement with Crawford Grading. On October 23,
2019, the Esters, with the assistance of new counsel, filed a second motion
to reinstate the case. On the same day, the Utilities Board filed an
objection to the motion to reinstate.
On January 4, 2021, the circuit court entered an order purporting to
reinstate the case. That order noted that the Esters' second set of
attorneys had withdrawn from the case before the hearing was held and
that the Esters, themselves, never received notice of the hearing on the
summary-judgment motions. The circuit court further stated that the
Utilities Board had agreed to the condition in the September 9 order that
4
1200307
the Esters be given 45 days in which to request reinstatement of the case.
The Utilities Board filed a motion to reconsider the order reinstating the
case. At a hearing on the Utilities Board's motion to reconsider, the
Utilities Board informed the circuit court that it planned to file the
instant petition for writ of mandamus if the motion to reconsider was
denied. The circuit court then stated for the record that it would not grant
the motion to reconsider but that it would withhold ruling on the merits
of the Utilities Board's motion for a summary judgment. This mandamus
petition followed.
Standard of Review
" 'A writ of mandamus is an extraordinary remedy, and
is appropriate when the petitioner can show (1) a clear legal
right to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court.' "
Ex parte Chmielewski, 280 So. 3d 386, 388 (Ala. 2018) (quoting Ex parte
BOC Grp. Inc., 823 So. 2d 1270, 1272 (Ala. 2001)).
Discussion
5
1200307
In its petition for a writ of mandamus, the Utilities Board argues
that, because the Esters did not file a timely postjudgment motion
pursuant to Rule 59(e), Ala. R. Civ. P., the circuit court lost subject-matter
jurisdiction over the case 30 days after the circuit court entered the
September 9 order and that, therefore, the circuit court lacked the
authority to enter the order granting the Esters' motion to reinstate the
case. Rule 59(e) states that "[a] motion to alter, amend, or vacate the
judgment shall be filed not later than thirty (30) days after entry of the
judgment." This Court has held that "[i]f no Rule 59 motion is filed after
a judgment is entered, the trial court that entered the judgment generally
loses jurisdiction to amend the judgment 30 days after the judgment is
entered." Ex parte Caremark Rx, LLC, 229 So. 3d 751, 757 (Ala.
2017)(citing Pierce v. American Gen. Fin., Inc., 991 So. 2d 212, 215 (Ala.
2008)); see also George v. Sims, 888 So. 2d 1224, 1227 (Ala. 2004)
("Generally, a trial court has no jurisdiction to modify or amend a final
order more than 30 days after the judgment has been entered, except to
correct clerical errors.").
6
1200307
The Utilities Board contends that the September 9 order is a final
judgment. A final judgment is one that "conclusively determines the
issues before the court and ascertains and declares the rights of the
parties." Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995). This Court has
also stated that a final judgment "is one that puts an end to the
proceedings between the parties to a case and leaves nothing for further
adjudication." Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So. 2d
316, 320 (Ala. 2001)(citing City of Birmingham v. City of Fairfield, 396 So.
2d 692 (Ala. 1981)). The Utilities Board contends that the September 9
order disposed of all the Esters' claims against all the remaining
defendants in their entirety and that, despite the provision in the
September 9 order purporting to allow the Esters 45 days to file a motion
to reinstate the case, the 30-day period under Rule 59(e) began to run
upon the entry of that order. A review of the September 9 order reveals
that the circuit court unequivocally entered a summary judgment and
"dismissed" the case. Thus, the September 9 order, on its face, appears to
be a final judgment.
7
1200307
The Esters, however, contend that, based on a variety of factors and
circumstances surrounding the entry of the September 9 order, that order
cannot be construed to be a final judgment. This Court has said:
"We construe [a] trial court's judgment like other written
instruments: the rules of construction for contracts are
applicable for construing judgments. Hanson v. Hearn, 521 So.
2d 953, 954 (Ala. 1988); Moore v. Graham, 590 So. 2d 293, 295
(Ala. Civ. App. 1991). We are free to review 'all the relevant
circumstances surrounding the judgment,' and 'the entire
judgment ... should be read as a whole in the light of all the
circumstances as well as of the conduct of the parties.' Hanson,
521 So. 2d at 955."
Boykin v. Law, 946 So. 2d 838, 848 (Ala. 2006). First, the Esters allege
that the September 9 order was not a final judgment because the order
adjudicated fewer than all their claims against all the remaining
defendants. See Rule 54(b), Ala. R. Civ. P. (providing that "[w]hen more
than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties
are involved, the court may direct the entry of a final judgment as to one
or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express
direction for the entry of judgment"). " ' "The purpose of Rule 54(b) ... is to
8
1200307
make final 'an order which does not adjudicate the entire case but as to
which there is no just reason for delay in the attachment of finality." ' "
Ghee v. USAble Mut. Ins. Co., 253 So. 3d 366, 371 (Ala. 2017),(quoting
Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 874 (Ala. 2011), quoting,
in turn, other cases). The Esters contend that the provision of the
September 9 order authorizing the Esters to request reinstatement of the
case within 45 days indicates that the circuit court intended not to
terminate the case, that the circuit court intended to preserve the Esters'
claims for the 45-day period, and that the circuit court concluded that
there was just reason to delay entry of a final judgment.
As our Court of Civil Appeals has recognized, "[n]either Rule 59(b)
nor Rule 59(e)[, Ala. R. Civ. P.,] provide for such an extension of time, and
the 30-day time limit for the filing of motions contemplated by those rules
therefore cannot be extended." Ex parte Patterson, 853 So. 2d 260, 262
(Ala. Civ. App. 2002). Similarly, "[a]lthough trial courts can interpret and
clarify the meaning of their judgments, they cannot convert a final
judgment into a nonfinal judgment simply by declaring it to be nonfinal."
Ex parte Chmielewski, 280 So. 3d at 390 (citing Smith v. Fruehauf Corp.,
9
1200307
580 So. 2d 570, 572 (Ala. 1991)). In addition, Rule 6(b), Ala. R. Civ. P.,
provides that a court "may not extend the time for taking any action under
Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b)[, Ala. R. Civ. P.,] except to
the extent and under the conditions stated in them." Accordingly, the
provision in the September 9 order authorizing the Esters to request
reinstatement of the case within 45 days neither had the legal effect of
extending the circuit court's jurisdiction over the case beyond 30 days
after the entry of that order nor made the order a nonfinal judgment.
Second, the Esters contend that, in the September 9 order, the
circuit court limited its summary-judgment ruling to a single defendant
when it used the singular possessive noun "defendant's" rather than the
plural possessive noun "defendants' "; thus, the Esters contend, the circuit
court entered a summary judgment in favor of only one of the two
defendants who had pending summary-judgment motions -- i.e., the
Utilities Board or Crawford Grading -- and that the circuit court did not
specify which defendant's motion was being granted. A reading of the
September 9 order, however, reveals that the circuit court's placement of
the apostrophe is more likely the result of a scrivener's error, and,
10
1200307
therefore, the failure of the September 9 order to expressly identify the
defendants in whose favor the circuit court was entering a summary
judgment does not alter the fact that the order disposed of all the Esters'
claims against all the remaining defendants. Particularly noteworthy is
the circuit court's unequivocal language in the September 9 order stating
that the case was being "dismissed," thus indicating that no further claims
were pending before the circuit court. Additionally, the Esters' motion to
reinstate specifically requested reinstatement of the entire case, not just
the claims against one party. Moreover, the circuit court's order of
January 4, 2021, purporting to reinstate the case does not provide any
indication that less than all claims had been disposed of but, instead,
purports to reinstate the "matter" to the circuit court's docket. Further
still, the failure of the September 9 order to specifically reference the
defendants by name does not indicate that the circuit court left claims
pending against one party. See Ex parte Chmielewski, 280 So. 3d 386
(reviewing all the relevant circumstances surrounding the entry of a
judgment and concluding that, despite the failure of a judgment of
dismissal to expressly reference a defendant who had filed a motion to
11
1200307
dismiss and who had asserted the same arguments as another defendant,
the judgment did not leave the proceedings pending as to either
defendant).
Third, the Esters point out that the January 4, 2021, order
purporting to reinstate the case to the circuit court's docket states that
"[t]he defendants agreed to a granting of said Motion for ... Summary
Judgment subject to reinstatement by the plaintiffs upon Motion filed
within 45 days." In its petition to this Court, the Utilities Board denies
that it had agreed to the 45-day reinstatement period, but, even if it did
so, the actions of parties cannot vest a trial court with subject-matter
jurisdiction. Stated otherwise, "subject-matter jurisdiction may not be
conferred by consent." Espinoza v. Rudolph, 46 So. 3d 403, 413 (Ala. 2010).
Thus, even if the Utilities Board had consented to the provision in the
September 9 order allowing the Esters 45 days to request reinstatement
of the case, the circuit court was nevertheless without jurisdiction to take
any further action in the case after the 30-day period following the entry
of the September 9 order had expired.
12
1200307
Fourth, the Esters argue that the circuit court failed to comply with
Rule 56(c)(2), Ala. R. Civ. P., when it held the hearing on the summary-
judgment motions on August 28, 2019. Rule 56(c)(2) ensures that a party
opposing a summary-judgment motion has a meaningful opportunity to
respond by requiring a minimum of 10 days between the date the
summary-judgment motion is served and the date of the hearing. See, e.g.,
Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So. 2d 826, 828 (Ala.
1991). The 10-day notice requirement was met in this case because the
Utilities Board's summary-judgment motion and supporting materials
were filed on August 8, 2019, Crawford Grading's summary-judgment
motion and supporting materials were filed on August 15, 2019, and the
circuit court held the hearing on the motions on August 28, 2019.
Although the Esters, themselves, may have not been aware of the hearing,
the summary-judgment motions were filed and properly served on the
Esters' second set of attorneys, who withdrew two days before the hearing.
No responses to the motions were filed. " It is elementary that omissions
and commissions of an attorney at law are to be regarded as acts of the
client whom he represents." Lawrence v. Gayle, 294 Ala. 91, 94, 312 So.
13
1200307
2d 385, 387 (1975). This Court has also stated that "[k]nowledge of the
attorney will be imputed to the client if the knowledge comes to the
attorney while engaged in a service for the client after the attorney-client
relationship has commenced." Sanders v. Flournoy, 640 So. 2d 933, 939
(Ala. 1994). Moreover, notice of a hearing that is provided to an attorney
constitutes notice to the attorney's client. Shirley v. McDonald, 220 Ala.
50, 53, 124 So. 104, 106 (1929) ("[C]ounsel's knowledge ... of the date of
trial[] must be imputed to [the] defendant as a matter of law ...."). We
conclude that the Esters, through their former counsel, received adequate
notice of the hearing on the summary-judgment motions under Rule 56(c),
and their argument that the circuit court should not have proceeded with
the hearing is without merit.
Under the totality of the circumstances surrounding the entry of the
September 9 order, we conclude that the order was a final judgment. The
provision of the order granting the Esters 45 days to request
reinstatement of the case did not extend the time for the Esters to file a
postjudgment motion under Rule 59(e). After expiration of the 30-day
period prescribed by Rule 59(e), the circuit court lost jurisdiction to take
14
1200307
any further action in the case. Accordingly, the circuit court lacked
authority to enter the January 4, 2021, order purporting to reinstate the
case to its docket.
Finally, we conclude that, even if the circuit court had considered
the Esters' motion to reinstate the case to be a motion filed pursuant to
Rule 60(b), Ala. R. Civ. P., the Esters would not be entitled to have the
September 9 order set aside under that rule. This Court has stated:
"Without question, a movant must both allege and prove
one of the grounds set forth in Rule 60 in order to be granted
relief under that rule. Moreover, because Rule 60(b) relief is
extraordinary relief, a movant has the burden of proving
extraordinary circumstances and/or extreme hardship or
injustice sufficient to entitle him to relief under Rule 60(b)(6).
And, while the decision of whether to grant or deny the motion
is within the sound discretion of the trial judge, that discretion
is not unbridled."
Ex parte Baker, 459 So.2d 873, 876 (Ala.1984)(internal citations omitted).
The Esters' motion to reinstate the case did not set forth any of the
grounds for relief under Rule 60(b), and the Esters' motion lacked
evidentiary support. See Ex parte Wallace, Jordan, Ratliff & Brandt,
L.L.C., 29 So. 3d 175, 178 (Ala. 2009)(concluding that the trial court
exceeded its discretion in granting a Rule 60(b) motion when a party failed
15
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to cite the allegedly applicable subsection of the rule on which it based its
motion and when the party failed to offer evidence in support of its
motion). Accordingly, Rule 60(b) provided no basis for the circuit court to
grant relief to the Esters.
Conclusion
For the foregoing reasons, we grant the petition and issue a writ of
mandamus directing the circuit court to vacate its order of January 4,
2021, purporting to reinstate the case.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Mitchell, JJ., concur.
16 | September 3, 2021 |
7897e131-56b9-4c8a-b2ef-065cc30a131e | Michael B. Cannon v. Zachary D. Lucas | N/A | 1190505 | Alabama | Alabama Supreme Court | Rel: August 20, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1190505 and 1190725
_________________________
Michael B. Cannon
v.
Zachary D. Lucas
Appeals from Jefferson Circuit Court
(CV-17-900127)
PER CURIAM.
Michael B. Cannon, the defendant below, appeals from a judgment
entered by the Jefferson Circuit Court in favor of Zachary D. Lucas, the
plaintiff below (case number 1190505). Cannon also separately appeals
from an order entered by the trial court refusing to supplement the record
1190505 and 1190725
on appeal (case number 1190725). We reverse the judgment and remand
the cause in case number 1190505, and we dismiss the appeal as moot in
case number 1190725.
Facts and Procedural History
At approximately 10:15 p.m., on November 16, 2015, Cannon and
Lucas were involved in a motor-vehicle accident on an unlit portion of
Interstate 22 when Cannon's vehicle collided with Lucas and the
motorcycle he had been riding. The testimony at trial as to the cause of
the accident was conflicting. Lucas testified that he had been working on
a motorcycle for a friend, that he had taken it for a test drive, and that it
must have run out of gas. Although he did not remember details
regarding how he got to the scene of the accident or details from after the
accident, he testified that he was sure that he had pulled off onto the
shoulder of the highway and that he was starting to check the gas level of
the motorcycle when he heard a loud noise. Cannon testified that, at the
time of the accident, it was pitch black in the area where the accident
occurred; that he heard a noise and scraping sounds and that, very shortly
thereafter, saw reflective material to his right; and that he thought that
2
1190505 and 1190725
he had run into an air-conditioning unit. He also testified that he had
been driving in the right-hand lane and using cruise control, that he had
not seen Lucas or the motorcycle before he hit them, and that he had not
braked before the impact. Cannon further testified that he never left his
lane of travel.
On January 12, 2017, Lucas filed a complaint against Cannon in the
Jefferson Circuit Court, alleging negligence and wantonness/recklessness
and seeking damages for the various injuries he allegedly had sustained
as a result of that accident. In the complaint, Lucas alleged that the
motorcycle he had been operating had become disabled and that he had
been forced to push it along the side of the highway; that Cannon had
been driving a 1995 Chevrolet Astro van in the same direction; and that
Cannon had allowed his van to forcefully collide with Lucas and the
motorcycle. On January 25, 2017, Cannon filed an answer to the
complaint. He denied most of the material allegations in the complaint
and raised some affirmative defenses, including contributory negligence
and assumption of the risk.
3
1190505 and 1190725
Lucas proceeded to trial solely on his negligence claim. After a four-
day trial that started on November 4, 2019, the jury returned a verdict in
favor of Lucas and awarded him $18 million in compensatory damages.
Thereafter, the trial court entered a judgment in favor of Lucas and
against Cannon in the amount awarded by the jury.
Cannon filed a motion for a judgment as a matter of law, for a new
trial, or for a remittitur, asserting, among other things, that the trial
court had erred by refusing to permit Cannon to present evidence of
Lucas's 2018 conviction for presenting a forged drug prescription. After
Lucas responded, the trial court conducted a hearing. Thereafter, the
motion was denied by operation of law. These appeals followed.
Standard of Review
"In reviewing a ruling on the admissibility of evidence, ... the
standard is whether the trial court exceeded its discretion in excluding the
evidence." Woven Treasures, Inc. v. Hudson Capital, L.L.C., 46 So. 3d
905, 911 (Ala. 2009).
Discussion
4
1190505 and 1190725
Cannon argues, as he did in his postjudgment motion, that the trial
court erred in granting Lucas's motion in limine to exclude evidence
concerning Lucas's 2018 conviction for presenting a forged drug
prescription. Before the trial, Lucas filed a motion in limine asking the
trial court to exclude any evidence concerning his August 9, 2018, felony
conviction for presenting a forged drug prescription. In that same motion,
he admitted that "[t]he specific details of [his] conviction are that he pled
guilty to presenting a forged prescription for Diazepam."
During a pretrial hearing on the motion in limine to exclude
evidence of Lucas's prior convictions, the following occurred:
"[CANNON'S COUNSEL]: One of the -- my motions or
his motion in limine was to keep out two criminal charges of
Mr. Lucas. Both involve dishonesty. One from [2018] forged
prescription for some [diazepam], and one was a 2013 theft of
various TVs and money and such from, a young lady.
"THE COURT: Relevance?
"[CANNON'S COUNSEL]: The relevance is that it goes
to his credibility. Caselaw is very clear that the Court has no
discretion on issues of dishonesty charges such as these two
crimes. And I believe [Lucas's counsel] agrees with me on
that, but I'll let him be heard.
"THE COURT: [Lucas's counsel]?
5
1190505 and 1190725
"[LUCAS'S COUNSEL]: We filed an opposition
Document 236 to the -- excuse me. A motion [in] limine, which
is Document 236 for the record. Our number 9, we move to
preclude both of those crimes for the following reasons: First
of all, is the 2018 attempt to commit a controlled-substance
crime. The date of the incident was August 9th, 2018. So
three years after this young man suffered a severe brain
injury and has undergone four surgeries, he attempted to --
"THE COURT: Wait, this was -- the conviction was after
the accident?
"[LUCAS'S COUNSEL]: Three and a half years after the
accident.
"THE COURT: After the accident?
"[LUCAS'S COUNSEL]: Yes, sir.
"THE COURT: Was any conviction before the accident?
"[LUCAS'S COUNSEL]: The misdemeanor theft of
property conviction from 2013 that they've offered where he
was -- pled guilty to stealing less than $500 worth of stuff is
the other one that they move to admit. And while I
acknowledge that it is a crime that involves, you know, the old
standard --
"THE COURT: Moral turpitude.
"[LUCAS'S COUNSEL]: -- moral turpitude or
dishonesty, we'd argue that that has the prejudicial value
associated with that theft of property conviction coming in,
again, it overwhelms and, I guess, outweighs in probative
value that that evidence may have had.
6
1190505 and 1190725
"THE COURT: I'll allow the misdemeanor conviction. I
won't allow anything that happened after the accident.
"[CANNON'S COUNSEL]: Your Honor, it still goes to his
credibility.
"THE COURT: Not after the accident. ...
"[CANNON'S COUNSEL]: If you're a thief and you're
dishonest, it doesn't matter when it happens, Your Honor.
This is not like driving history or anything like that.
"THE COURT: Yeah. But we're talking about an
accident that occurred -- when does the accident occur?
"[LUCAS'S COUNSEL]: November of 2015.
"THE COURT: Right. You know, have you been
dishonest since then? That's irrelevant.
"....
"THE COURT: I'll allow the misdemeanor that he pled
guilty to before the accident but not after."
Shortly thereafter, the following discussion occurred:
"[CANNON'S COUNSEL]: Just so the record's clear, the
subsequent conviction that you're not going to allow in is a
felony under Section 13A-12-212 and 13A-12-203, [Ala. Code
1975,] which involves obtaining a prescription by forgery,
fraud, deceit, or misrepresentation. That's the claim that I was
wanting to get in, which you denied. I just want to make sure
the record was clear.
7
1190505 and 1190725
"THE COURT: Okay. So noted."
Cannon specifically contends that the trial court "had no basis for writing
a novel 'after the accident' exception into Rule 609," Ala. R. Evid., and that
evidence of Lucas's 2018 conviction for presenting a forged drug
prescription was automatically admissible under Rule 609(a)(2), Ala. R.
Evid.
Before we reach the merits of Cannon's argument, we must
determine whether this issue is properly before this Court.
"This Court has previously recognized two types of
motions in limine, 'prohibitive preliminary' and 'prohibitive
absolute.' Keller v. Goodyear Tire & Rubber Co., 521 So. 2d
1312 (Ala. 1988). Preliminary motions in limine seek only to
prohibit the opposing party from offering or mentioning certain
evidence without first obtaining a ruling from the judge during
trial. Id. at 1313. With a preliminary motion in limine, the
nonmoving party must make an offer of proof and indicate why
the evidence should be admitted, in order to preserve for
review any error in the court's ruling. Id. However, with an
absolute motion in limine, no such offer of proof need be made
at trial in order to preserve for review any alleged error in the
trial court's order granting such a motion. Id. The motion in
limine in this case was an absolute motion in limine."
Phelps v. Dempsey, 656 So. 2d 377, 381 n.1 (Ala. 1995). See also Higgs v.
Higgs, 270 So. 3d 280, 286 n.3 (Ala. Civ. App. 2018)("[B]ecause the trial
8
1190505 and 1190725
court's ruling on the former wife's motion in limine, which sought an
unconditional bar to economic-condition evidence pertaining to her, was
absolute rather than preliminary, no offer of proof was necessary in order
to preserve that ruling for review."). Likewise, the motion in limine in
this case was an absolute motion in limine, rather than a preliminary
motion in limine, and no subsequent offer of proof was required to
preserve the issue for appellate review. Therefore, although Cannon did
not make an offer of proof at trial, this issue is, nevertheless, properly
before this Court.
Initially, Cannon argues that the trial court "had no basis for writing
a novel 'after the accident' exception into Rule 609." With regard to
impeachment by evidence of prior convictions, Rule 609 provides, in
relevant part:
"(a) General Rule. For the purpose of attacking the
credibility of a witness,
"(1)(A) evidence that a witness other than an
accused has been convicted of a crime shall be
admitted, subject to Rule 403, [Ala. R. Evid.,] if the
crime was punishable by death or imprisonment in
excess of one year under the law under which the
witness was convicted, and
9
1190505 and 1190725
"(B) evidence that an accused has been
convicted of such a crime shall be admitted if the
court determines that the probative value of
admitting this evidence outweighs its prejudicial
effect to the accused; and
"(2) evidence that any witness has been
convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the
punishment.
"(b) Time Limit. Evidence of a conviction under this rule
is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever
is the later date, unless the court determines, in the interests
of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction, more
than ten years old as calculated herein, is not admissible
unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest
the use of such evidence."
By its plain language, Rule 609 does not impose any requirement
that a conviction that is to be used for impeachment purposes must have
occurred before the incident that provides the basis for the current
proceeding. Therefore, to the extent that the trial court found that
Cannon could not introduce evidence of Lucas's 2018 conviction merely
10
1190505 and 1190725
because it occurred after the accident in this case, that finding was
erroneous.
Cannon also argues that Lucas's 2018 conviction for presenting a
forged drug prescription was automatically admissible under Rule
609(a)(2). By its plain language, Rule 609(a)(2) provides that "evidence
that any witness has been convicted of a crime shall be admitted if it
involved dishonesty or false statement, regardless of the punishment."
(Emphasis added.)
"Convictions for the following listed crimes are eligible
for impeachment in that each offense satisfies either
Alabama's narrow or broad interpretation of the 'dishonesty or
false statement' standard set forth in Rule 609(a)(2). Crimes
satisfying the narrow interpretation, which require some
element of fraud, deceit or misrepresentation of fact, include
such crimes as perjury, subornation of perjury, false
statement, criminal fraud, embezzlement or false pretense.
Crimes satisfying the broader Huffman [v. State, 706 So. 2d
808 (Ala. Crim. App. 1997),] interpretation -- illustrated by
burglary, robbery and larceny -- involve dishonesty (meaning
breach of honesty or trust, as lying, deceiving, cheating,
stealing, or defrauding) and bear directly on the capacity of a
witness to testify truthfully at trial.
"....
11
1190505 and 1190725
"(g) Forgery -- Robinson v. State, 735 So. 2d 208, 211
(Miss. 1999). See Ala. R. Evid. 609(a) advisory committee
notes.
"(h) False prescription -- See Ala. R. Evid. 609(a) advisory
committee's notes; United States v. Tracy, 36 F.3d 187, 192
(1st Cir. 1994), cert. denied, 514 U.S. 1074 (1995)."
II Charles W. Gamble et al., McElroy's Alabama Evidence § 145.01(9) at
1015-16 (7th ed. 2020). The crime at issue in this case involved forgery --
specifically, presenting a forged drug prescription. Therefore, we must
determine whether presenting a forged drug prescription involves
dishonesty or false statement so that evidence of a conviction for that
offense is automatically admissible for impeachment purposes pursuant
to Rule 609(a)(2).
In United States v. Tracy, 36 F.3d 187, 192 (1st Cir. 1994), the
United States Court of Appeals for the First Circuit explained:
"The Government insists that under Fed. R. Evid.
609(a)(2) the district court had no discretion to exclude the
evidence of Tracy's conviction for uttering a false prescription,
as this was a crime of dishonesty offered to impeach Tracy's
credibility as a witness. The Government is correct. A
conviction for uttering a false prescription plainly involves
dishonesty or false statement. See Fed. R. Evid. 609 notes of
conference committee, H.R. No. 93-1597 ('By the phrase
"dishonesty and false statement" the Conference means crimes
12
1190505 and 1190725
such as perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to testify
truthfully.'). Moreover, '[t]he admission of prior convictions
involving dishonesty and false statement is not within the
discretion of the [district] [c]ourt.' Id.; e.g., United States v.
Morrow, 977 F.2d 222, 228 (6th Cir. 1992) ('Rule 609(a)(2) ...
clearly limits the discretion of the court by mandating the
admission of crimes involving dishonesty or false statements.'),
cert. denied, 508 U.S. 975, 113 S. Ct. 2969, 125 L. Ed. 2d 668
(1993); United States v. Kiendra, 663 F.2d 349, 354 (1st Cir.
1981) ('[E]vidence offered under Rule 609(a)(2) is not subject
to the general balancing provision of Rule 403.'). Hence, we
find no error in the admission of evidence of the prior
conviction for uttering a false prescription."
In Jones v. State, 846 So. 2d 1041 (Miss. Ct. App. 2002), the
Mississippi Court of Appeals held:
"Jones testified that on the day of the robbery, she was
at her doctor's office getting her prescription filled. Introduced
into evidence was her prescription receipt and her doctor's
patient chart to confirm the date. The State sought to attack
her truthfulness by producing evidence of a prior misdemeanor
conviction for prescription forgery. The State reasoned that
this evidence was relevant to show the defendant's propensity
for untruthfulness. By a rule of evidence, proof of a prior
conviction is readily admissible to attack the credibility of a
witness when the conviction involved a dishonest or false
statement. [Miss. R. Evid.] 609(a)(2).
13
1190505 and 1190725
"Jones asserts that the admission of this evidence was
reversible error. When the prior conviction is of a crime that
directly
involves
untruthfulness,
such
evidence
is
automatically admissible without the added requirement of
undertaking a balancing that is required for proof of
convictions of other kinds of crimes. Id.; Adams v. State, 772
So. 2d 1010 (¶ 56) (Miss. 2000). Forgery is the kind of crime
covered by Rule 609(a)(2).
"There was no error in the State using this prior
conviction for impeachment."
846 So. 2d at 1046-47.
Also, in Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995),
the Superior Court of Pennsylvania held:
"Appellant was convicted, essentially, of writing prescriptions
for a controlled substance to himself, knowing he had a
chemical dependency problem. The crime itself involves
making a false statement because it necessarily involves the
falsification of a prescription by a practitioner representing
that it is not for a person who is chemically dependent.
Because of the very nature of the offense committed, we must
find that the crime is crimen falsi and, because the conviction
is admitted to have occurred within ten (10) years of the
matter involved, evidence concerning it should have been
admitted at trial. It was error, therefore, for the trial court to
have excluded the evidence. Likewise, it was error, under
Russell v. Hubicz, [425 Pa. Super. 120, 624 A.2d 175 (1993)],
and Commonwealth v. Randall, [515 Pa. 410, 528 A.2d 1326
(1987)], for the court to have found that the crime was not
crimen falsi and to have therefore performed a balance
14
1190505 and 1190725
between probative value and prejudicial effect. The evidence
was automatically admissible."
439 Pa. Super. at 272, 653 A.2d at 1254 (footnote omitted).
Based on the comments in McElroy's Alabama Evidence and the
holdings in Tracy, supra, Jones, supra, and Allen, supra, each of which
interpreted a ruled of evidence substantially similar to our Rule 609(a)(2),
we conclude that presenting a forged drug prescription is a crime
involving "dishonesty or false statement" and that evidence concerning a
conviction for that offense is automatically admissible for impeachment
purposes pursuant to Rule 609(a)(2). Therefore, to the extent that the
trial court found that Cannon could not introduce evidence of Lucas's 2018
conviction because it was irrelevant and because the danger of unfair
prejudice to Lucas substantially outweighed the probative value of the
evidence, those findings were erroneous.
Conclusion
For the above-stated reasons, we conclude that the trial court erred
in granting Lucas's motion in limine to exclude evidence regarding his
2018 conviction for presenting a forged drug prescription. Because the
15
1190505 and 1190725
trial court erred in ruling that Cannon could not present such evidence at
trial, we must conclude that it also erred in denying Cannon's motion for
a new trial. Accordingly, in case number 1190505, we reverse the trial
court's judgment based on the jury verdict, and we remand this case for
that court to grant Cannon's motion for a new trial.1 We determine that
the issue raised in case number 1190725 concerning supplementation of
the record on appeal is moot; therefore, we dismiss that appeal.
1190505 -- REVERSED AND REMANDED.
1190725 -- APPEAL DISMISSED.
Bolin, Shaw, Bryan, and Sellers, JJ., concur.
Mendheim and Stewart, JJ., concur in the result.
Parker, C.J., dissents.
Wise and Mitchell, JJ., recuse themselves.
1Based on our disposition of this issue, we pretermit discussion of the
remaining issues raised by Cannon in case number 1190505.
16
1190505 and 1190725
PARKER, Chief Justice (dissenting).
I agree with the main opinion's application of Rule 609, Ala. R. Evid.,
concluding that the circuit court erred by excluding Zachary Lucas's
postaccident conviction, but I dissent because Michael Cannon did not
demonstrate that the error harmed him and because I believe the circuit
court's error was harmless.
Rule 45, Ala. R. App. P., prohibits an appellate court from reversing
a judgment because of an erroneous evidentiary ruling if the error
probably did not harm the losing party:
"No judgment may be reversed or set aside, nor new trial
granted in any civil or criminal case on the ground of ... the
improper admission or rejection of evidence ..., unless in the
opinion of the court to which the appeal is taken ..., after an
examination of the entire cause, it should appear that the
error complained of has probably injuriously affected
substantial rights of the parties."
Thus, "the mere showing of error is not sufficient to warrant a reversal;
it must appear that the appellant was prejudiced by that error." City of
Birmingham v. Moore, 631 So. 2d 972, 973-74 (Ala. 1994). The appellant
bears the burden of showing that an erroneous ruling was prejudicial.
Middleton v. Lightfoot, 885 So. 2d 111 (Ala. 2003).
17
1190505 and 1190725
The main opinion contains no harmless-error analysis. And, in fact,
Cannon has not made any cognizable argument showing that the
exclusion of Lucas's postaccident conviction probably harmed him. In his
opening brief, Cannon baldly asserts that the error made the trial
"unfair," but he cites no authority in support of that assertion. In his reply
brief, Cannon insists that, "[i]n an $18 million case that turned almost
entirely on the jury's evaluation of who was more credible, the exclusion
of Lucas's [2018] conviction for [a] crime involving dishonesty is reason by
itself to reverse." However, he again fails to cite any supporting authority.
Because Cannon did not timely argue that the erroneous ruling harmed
him and, in violation of Rule 28(a)(10), Ala. R. App. P., has never cited
authority on that point, Cannon has failed to meet his appellate burden
of showing that the exclusion of Lucas's 2018 conviction warrants
reversal.
Additionally, the error was not probably prejudicial, because there
was ample evidence from which the jury could have found that Cannon
was negligent, regardless of Lucas's credibility. There were physical
"gouge" marks off the roadway caused by the accident. The wrecked
18
1190505 and 1190725
motorcycle was found off the road. Cannon testified that he never saw
Lucas before hitting him even though nothing obstructed his vision.
Cannon's van was dented on the right front and his right front tire was
popped, consistent with his hitting the motorcycle near or off the right
shoulder. A driver who stopped at the scene testified that, although the
area was dark and he was driving with only his low beams on, he had no
difficulty seeing the wrecked motorcycle off the road. Thus, even without
Lucas's testimony, the evidence strongly supported a conclusion that
Cannon was negligent in failing to see and avoid Lucas and the
motorcycle.
For these reasons, I would not reverse the judgment based on the
circuit court's erroneously excluding Rule 609 impeachment evidence.
19 | August 20, 2021 |
dfa03ffd-c0aa-49e6-90dc-134f91c2dd91 | Alabama State Bar v. Christopher M. Kaminski | N/A | 1200073 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200073
____________________
Alabama State Bar
v.
Christopher M. Kaminski
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200074
____________________
Alabama State Bar
v.
Amy C. Marshall
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
____________________
1200083
____________________
Christopher Mark Kaminski
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200084
____________________
Amy Cauthen Marshall
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
SHAW, Justice.1
1These cases were previously assigned to another Justice; they were
reassigned to Justice Shaw.
2
1200073; 1200074; 1200083; 1200084
In these consolidated appeals, the Alabama State Bar ("the Bar")
appeals from an order of Panel II of the Disciplinary Board of the Alabama
State Bar ("the Board") suspending both Christopher Mark Kaminski and
Amy Cauthen Marshall from the practice of law. Kaminski and Marshall
also each cross-appeal the Board's order. We remand the matters with
directions.
Facts and Procedural History
The material facts in these matters are undisputed: Kaminski,
formerly a judge of the Coffee District Court, and Marshall, an Enterprise
attorney who routinely appeared before the Coffee District Court, secretly
engaged in an extramarital affair, during which Kaminski admittedly both
appointed Marshall as counsel in pending cases and took judicial action
in cases in which Marshall appeared as counsel of record, without
disclosing their relationship to the parties. During the proceedings below,
Kaminski and Marshall married each other and Marshall assumed
Kaminski's last name. To avoid confusion, this opinion will refer to
Marshall by her prior surname, under which the disciplinary matter
against her was originally initiated and by which she is consistently
3
1200073; 1200074; 1200083; 1200084
referred to in the record. Kaminski and Marshall waived the filing of
formal charges against them and entered "blind" pleas in the disciplinary
matters initiated against them by the Bar.2
At the ensuing disciplinary hearing, the Bar recounted the
misconduct to which Kaminski and Marshall had previously pleaded
2Specifically, Kaminski's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 8.4(a) [regarding the
violation, or the attempt to violate the Rules of Professional
Conduct, or knowingly assisting or inducing another to do so],
(d) [regarding engaging in conduct prejudicial to the
administration of justice,] and (g) [regarding engaging in
conduct adversely reflecting on the lawyer's fitness to practice
law], Alabama Rules of Professional Conduct."
Marshall's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 1.7(b) [prohibiting a lawyer's
representation of a client if the representation may be
materially limited by the lawyer's own interest, unless the
client consents after consultation], 8.4(d) [regarding engaging
in conduct prejudicial to the administration of justice], (f)
[prohibiting knowingly assisting a judge in conduct that
violates the Canons of Judicial Ethics,] and (g) [regarding
engaging in conduct adversely reflecting on the lawyer's fitness
to practice law], Alabama Rules of Professional Conduct."
4
1200073; 1200074; 1200083; 1200084
guilty; presented authorities from other states involving allegedly
comparable conduct and standards similar to the Alabama Standards for
Imposing Lawyer Discipline ("the Standards"), each of which resulted in
disbarment or a minimum of two years' suspension; and cited the
particular Standards that it maintained applied in determining
appropriate punishment for the acknowledged misconduct in these
matters.3
Thereafter, Kaminski and Marshall both testified before the Board,
called numerous character witnesses, and presented other evidence.
Primarily, their evidence related that both Kaminski and Marshall were
remorseful for their misconduct; that both were assets to the legal
community within Coffee County; that Kaminski had played only a
limited role in Marshall's appointments and the approval of her related
fee declarations; that Kaminski never showed Marshall any discernible
favoritism; and that both Kaminski, who was required to resign from the
bench as a result of the above-described misconduct, and Marshall had,
3These included Standards 4.3, 4.5, 5.1, 5.2, and 7.0.
5
1200073; 1200074; 1200083; 1200084
before the institution of the disciplinary proceedings, already experienced
"public-sham[ing]" within their local media and community when their
relationship was disclosed.
In summation, the Bar reiterated its belief regarding the applicable
discipline range and argued the following regarding aggravating
circumstances:
"[A]s far as aggravating circumstances, [the Bar would] like
the Board to consider the following: Dishonest or selfish
motive, a pattern of misconduct, and multiple offenses. This
happened over a long period of time. This was not a one-time
thing. It happened over, at least by their own testimony, a
five- or six-month period."
It further argued that the negative publicity that Kaminski and Marshall
cited as a mitigating circumstance actually amounted to evidence of
damage to the integrity of the legal profession and the legal system in the
eyes of the public resulting from their misconduct. The Bar recommended
a minimum of a three-year suspension for both Kaminski and Marshall.
The Board's subsequent order suspended Kaminski from the practice
of law for 180 days and suspended Marshall from the practice of law for
90 days, with Marshall's suspension to begin immediately upon the entry
6
1200073; 1200074; 1200083; 1200084
of the order and Kaminski's suspension to begin 91 days after entry of the
order. In its order, the Board recounted the specific rules of the Alabama
Rules of Disciplinary Procedure that Kaminski and Marshall were charged
with violating and also detailed, without reference to any supporting
Standard on which the Board relied, the Board's determination of
suspension as the "appropriate discipline."
The order included, without reference to any evidentiary finding on
which the Board relied, the Board's conclusions as to the existence of each
individual aggravating and mitigating circumstance prescribed in
Standard 9.0 and a corresponding indication that each circumstance
either did or did not exist for Kaminski or for Marshall. More specifically,
the Board found the existence of only two aggravating circumstances:
that both Kaminski and Marshall had exhibited dishonest or selfish
motives and that each possessed substantial experience in the practice of
law. The Board found the existence of the following mitigating
circumstances: that neither Kaminski nor Marshall had a prior
disciplinary record; that both had made a timely, good-faith effort to
rectify any consequences of their misconduct; that both had provided full
7
1200073; 1200074; 1200083; 1200084
disclosure and cooperation to the Board during the disciplinary
proceedings; and that both had exhibited remorse for their misconduct.
The Bar appealed, and Kaminski and Marshall cross-appealed.
Standard of Review
" 'The standard of review applicable to an
appeal from an order of the Disciplinary Board is
"that the order will be affirmed unless it is not
supported by clear and convincing evidence or
misapplies the law to the facts." Noojin v. Alabama
State Bar, 577 So. 2d 420, 423 (Ala.1990), citing
Hunt v. Disciplinary Board of the Alabama State
Bar, 381 So. 2d 52 (Ala.1980).'
"Davis v. Alabama State Bar, 676 So. 2d 306, 308 (Ala.1996)."
Cooner v. Alabama State Bar, 59 So. 3d 29, 37 (Ala. 2010).
Discussion
On appeal, the Bar argues that the Board's discipline was so lenient
as to be "manifestly unjust" under the Standards, which, it argues,
mandate, at a minimum, suspensions lasting several years. In their cross-
appeals, Kaminski and Marshall argue that the Board erred, on various
grounds, in imposing their respective terms of suspension and in failing,
instead, to impose lesser punishments under the applicable Standards.
8
1200073; 1200074; 1200083; 1200084
Both the Bar and Kaminski and Marshall, in support of their respective
claims of error, challenge certain of the Board's findings as to the
existence of aggravating and mitigating circumstances as clearly
erroneous. See Tipler v. Alabama State Bar, 866 So. 2d 1126 (Ala. 2003)
(explaining that the "clearly erroneous" standard of review applies to the
findings of fact of the Board), and Alabama State Bar Ass'n v. Dudley, 95
So. 3d 777, 779-80 (Ala. 2012) (observing that a finding is "clearly
erroneous" when, although there is evidence to support it, this Court,
based on the evidence, is left with the definite and firm conviction that a
mistake has been made).
Rule 4.2(b)(6), Ala. R. Disc. P., provides, in part:
"The Disciplinary Hearing Officer shall make written findings
of fact and conclusions of law as directed by the Disciplinary
Board, which shall be captioned 'Report and Order.' ....
"....
"(C) The Report and Order shall contain:
"(i)
A
finding
of
fact
and
conclusion of law as to each allegation
of misconduct, which, upon acceptance
by the Disciplinary Board, shall enjoy
the same presumption of correctness as
9
1200073; 1200074; 1200083; 1200084
the judgment of a trier of fact in a
nonjury civil proceeding in which
evidence has been presented ore tenus;
"(ii) A finding as to whether the
respondent attorney is guilty or not
guilty of the misconduct charged; [and]
"(iii) A finding as to the discipline
to be imposed, with reference, where
appropriate, to the Alabama Standards
for Imposing Lawyer Discipline."4
(Emphasis added.)
All parties take issue with the Board's findings as to the existence
of various aggravating and mitigating circumstances. The Bar contends
that the Board erroneously failed to find additional aggravating
circumstances and also improperly found the existence of certain
mitigating circumstances. Both Kaminski and Marshall contend that the
Board's findings as to the existence of each aggravating circumstance were
correct, but they assert that the Board erroneously failed to find the
4Although findings and conclusions regarding each allegation of
misconduct and guilt are absent from the Board's order, presumably the
Board determined that such findings and conclusions were unnecessary
in light of the guilty pleas.
10
1200073; 1200074; 1200083; 1200084
existence of at least two additional mitigating circumstances that, they
say, applied to each of them. The Bar also maintains that the Board's
order is legally insufficient either to demonstrate the relation of the
discipline imposed to the allegations of misconduct to which Kaminski and
Marshall pleaded guilty and/or to allow for meaningful appellate review.
More specifically, it contends that, in disciplining Kaminski and Marshall,
the Board failed to consider, to follow, or to cite to the relevant Standards
supporting that discipline.
With regard to Bar disciplinary proceedings, this Court has two
distinct roles: one stemming from our independent duties arising from
rules authorizing appellate review of orders entered in disciplinary
proceedings and one from our inherent authority to supervise the Bar. In
Simpson v. Alabama State Bar, 294 Ala. 52, 56, 311 So. 2d 307, 309
(1975), this Court stated that the Board of Bar Commissioners, which
appoints the members of the Board, see Rule 4, Ala. R. Disc. P., "was
created in aid of this [C]ourt," which "retains the power to ... inquire into
the merits of any disciplinary proceeding, and to take any action it sees fit
in such matters." (Emphasis added.) Further, this Court "in any case of
11
1200073; 1200074; 1200083; 1200084
suspension or disbarment from practice ... may ... inquire into the merits
of the case and take any action agreeable to its judgment." § 34-3-43(a)(5),
Ala. Code 1975.
Based on the record before us and considering the evidence adduced
in the underlying disciplinary proceedings, it is unclear to this Court how
-- or more precisely based on what evidence -- the Board could have
reached some of its findings regarding the existence or nonexistence of
certain aggravating and mitigating circumstances. More critical than the
absence of specific underlying factual findings, though the Board's order
also omits, in "determin[ing] the appropriate discipline in this matter,"
reference to any supporting Standards pursuant to which that discipline
was allegedly imposed -- as Rule 4.2(b)(6)(C)(iii) specifically requires. The
Board had an independent duty to comply with Rule 4.2, and this Court,
which is called upon to approve the Board's actions, is unable to do so in
the present matters without either further clarification or additional
information. The indicated omissions prevent this Court from engaging
in the review necessary to determine whether each unexplained finding
enumerated by the Board and recounted above is " ' "supported by clear
12
1200073; 1200074; 1200083; 1200084
and convincing evidence" ' " or to consider, based on those findings, the
propriety of the Board's disciplinary sanctions. Cooner, 59 So. 3d at 37.
This Court's precedent suggests that remanding the matters for the entry
of an order containing the necessary findings is an appropriate remedy in
such cases. See Cooner, 59 So. 3d at 39. See also Cooner v. Alabama
State Bar, 145 So. 3d 1 (Ala. 2013) (remanding a second time to address
similar deficiencies). Cf. Alabama State Bar v. R.G.P., 988 So. 2d 1005
(Ala. 2008) (vacating an order of the Board of Disciplinary Appeals of the
Alabama State Bar because the order did not provide the basis for
reversing a disciplinary decision of the Board).
Conclusion
The parties have raised issues regarding whether the Board erred
in its findings as to the existence of aggravating and mitigating
circumstances. Because the Board's order does not provide a sufficient
explanation of its holdings so as to allow meaningful review under Rule
12(f), Ala. R. Disc. P., and § 34-3-43(a)(5), Ala. Code 1975, we remand the
matters for the Board to issue a new order that specifically provides, as to
each finding by the Board concerning the existence of an aggravating or
13
1200073; 1200074; 1200083; 1200084
mitigating circumstance, the evidentiary basis on which the Board relied
in reaching its conclusion and that references, as provided in Rule
4.2(b)(6)(C)(iii), the supporting Standards on which the Board relied in
determining that the terms of suspension imposed were appropriate. See
Cooner, 59 So. 3d at 39. The Board shall make due return to this Court
within 42 days of the issuance of this opinion.
1200073 -- REMANDED WITH DIRECTIONS.
1200074 -- REMANDED WITH DIRECTIONS.
1200083 -- REMANDED WITH DIRECTIONS.
1200084 -- REMANDED WITH DIRECTIONS.
Parker, C.J., and Bolin, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Wise, Bryan, and Sellers, JJ., concur in the result.
14 | September 3, 2021 |
69f54266-5fc5-4a2f-9850-9c75c2b8c683 | Ex parte Jefferson County Board of Education. | N/A | 1200230 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200230
____________________
Ex parte Jefferson County Board of Education
PETITION FOR WRIT OF MANDAMUS
(In re: Alabama Lockers, LLC
v.
Jefferson County Board of Education)
(Jefferson Circuit Court, CV-20-902676)
BRYAN, Justice.
1200230
The Jefferson County Board of Education ("the Board") petitions this
Court for a writ of mandamus directing the Jefferson Circuit Court to
dismiss the action brought against the Board by Alabama Lockers, LLC.
Because the Board is entitled to State immunity, we grant the petition
and issue the writ.
Alabama Lockers provides services regarding school lockers. In July
2020, Alabama Lockers sued the Board, alleging breach of contract.
Alabama Lockers also alleged that the Board had failed to follow both
"state bid laws" and its own policies and procedures regarding bidding on
locker-services contracts. In September 2020, the Board filed a motion to
dismiss, asserting, in relevant part, that Alabama Lockers' action is
barred by State immunity. The circuit court denied the Board's motion to
dismiss, and the Board then filed a petition for the writ of mandamus with
this Court.
" 'A petition for a writ of mandamus is the proper vehicle by which
to seek review of the denial of a motion to dismiss based on the ground of
State immunity.' " Ex parte Jefferson Cnty. Dep't of Hum. Res., 63 So. 3d
621, 625 (Ala. 2010) (quoting Drummond Co. v. Alabama Dep't of Transp.,
2
1200230
937 So. 2d 56, 57 (Ala. 2006)). Typically, the denial of a motion to dismiss
or a summary-judgment motion is not reviewable by a mandamus
petition; however, the denial of such a motion grounded on a claim of
immunity is one exception to that general standard. Ex parte Haralson,
853 So. 2d 928, 931 n.2 (Ala. 2003).
"The writ of mandamus is an extraordinary legal remedy.
Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360
(Ala. 1993). Therefore, this Court will not grant mandamus
relief unless the petitioner shows: (1) a clear legal right to the
order sought; (2) an imperative duty upon the trial court to
perform, accompanied by its refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly invoked
jurisdiction of the Court. See Ex parte Wood, 852 So. 2d 705,
708 (Ala. 2002)."
Ex parte Davis, 930 So. 2d 497, 499 (Ala. 2005).
The Board argues that Alabama Lockers' action against the Board
is barred by State immunity, which is sometimes referred to as sovereign
immunity in our caselaw. The Board is clearly correct.
" 'Section 14, Ala. Const. 1901, provides: "[T]he State of
Alabama shall never be made a defendant in any court of law
or equity." (Emphasis added.) "The wall of immunity erected
by § 14 is nearly impregnable." Patterson v. Gladwin Corp.,
835 So. 2d 137, 142 (Ala. 2002). Indeed, as regards the State
of Alabama and its agencies, the wall is absolutely
impregnable. Ex parte Alabama Dep't of Human Res., 999 So.
3
1200230
2d 891, 895 (Ala. 2008) ("Section 14 affords absolute immunity
to both the State and State agencies."); Ex parte Jackson
County Bd. of Educ., 4 So. 3d 1099, 1102 (Ala. 2008) (same);
Atkinson v. State, 986 So. 2d 408, 410-11 (Ala. 2007) (same);
[Ex parte Alabama Dep't of Transp.], 978 So. 2d 17 (Ala. 2007)]
(same); Ex parte Alabama Dep't of Transp., 764 So. 2d 1263,
1268 (Ala. 2000) (same); Mitchell v. Davis, 598 So. 2d 801, 806
(Ala. 1992) (same). "Absolute immunity" means just that -- the
State and its agencies are not subject to suit under any theory.
" ' "This immunity may not be waived." Patterson, 835
So. 2d at 142. Sovereign immunity is, therefore, not an
affirmative defense, but a "jurisdictional bar." Ex parte
Alabama Dep't of Transp., 985 So. 2d 892, 894 (Ala. 2007).
The jurisdictional bar of § 14 simply "preclud[es] a court from
exercising subject-matter jurisdiction" over the State or a
State agency. Lyons v. River Road Constr., Inc., 858 So. 2d
257, 261 (Ala. 2003). Thus, a complaint filed solely against the
State or one of its agencies is a nullity and is void ab initio. Ex
parte Alabama Dep't of Transp. (In re Russell Petroleum, Inc.
v. Alabama Dep't of Transp.), 6 So. 3d 1126 (Ala. 2008). ... Any
action taken by a court without subject-matter jurisdiction --
other than dismissing the action -- is void. State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1029 (Ala. 1999).' "
Ex parte Board of Trs. of Univ. of Alabama, 264 So. 3d 850, 853 (Ala.
2018) (quoting Alabama Dep't of Corr. v. Montgomery Cnty. Comm'n, 11
So. 3d 189, 191-92 (Ala. 2008)).
In Ex parte Hale County Board of Education, 14 So. 3d 844 (Ala.
2009), this Court explained that county boards of education are entitled
4
1200230
to State immunity under Article I, § 14, of the Alabama Constitution of
1901 (Off. Recomp.). This Court stated: " 'For purposes of § 14 immunity,
county boards of education are considered agencies of the State. Louviere
v. Mobile County Bd. of Educ., 670 So. 2d 873, 877 (Ala. 1995) ("County
boards of education, as local agencies of the State, enjoy [§ 14]
immunity.").' " Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d at 848 (quoting
Ex parte Jackson Cnty. Bd. of Educ., 4 So. 3d 1099, 1102 (Ala. 2008)).
"Because county boards of education are local agencies of the State, they
are clothed in constitutional immunity from suit." 14 So. 3d at 848. Thus,
the Board, as a county board of education, is entitled to State immunity
in this case. Accordingly, the Board has established a clear legal right to
have the action against it dismissed.
Alabama Lockers does not argue that it has a viable action under the
controlling precedent cited above. Rather, Alabama Lockers "disagrees ...
with the current precedent" and "strongly urges [this Court] to reassess
that precedent." Alabama Lockers' answer at 20. Specifically, Alabama
Lockers asks this Court to overrule Ex parte Hale County Board of
Education, supra, which, as noted above, held that county boards of
5
1200230
education are agencies of the State and, thus, are immune from suit under
§ 14. Hale, which this Court decided in 2009, explicitly overruled
Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774
(1920), and Sims v. Etowah County Board of Education, 337 So. 2d 1310
(Ala. 1976), "to the extent that they and their progeny impose an implied
'right to be sued' on county boards of education." 14 So. 3d at 848-49.
Before addressing the challenge to Hale, we will review the history
of State immunity as it relates to county boards of education.
" 'During the early years of our history as a State our rule
of state governmental responsibility was directly opposite from
what it is today. Our first Constitution provided:
" ' "The general assembly shall direct, by law,
in what manner, and in what courts, suits may be
brought against the State."
" 'Ala. Const. Art. 6, § 9 (1819).
" 'The constitutional mandate of 1819 remained
unchanged until the Constitution of 1865 was adopted when
the provision granting a right to sue the state was changed to
read:
" ' "That suits may be brought against the
State, in such manner, and in such courts, as may
be by law provided."
6
1200230
" 'In 1875, the Legislature repealed all acts granting the
right to sue the State, and the Constitution of 1875 contained
a provision, that "The State of Alabama shall never be made
defendant in any court of law or equity." Section 15, Const. of
Alabama, 1875. Section 14 of the 1901 Constitution is the
same as Section 15 of the 1875 Constitution. The adoption of
the 1875 Constitution closed the door to litigants who had
claims against the State, and the door has remained closed
continuously by subsequent constitutional provisions and court
decisions interpreting those provisions.
" 'Section 14 of the Alabama Constitution of 1901
specifically prohibits the State from being made a party
defendant in any suit at law or in equity. This Court,
construing Section 14, has held almost every conceivable type
of suit to be within the constitutional prohibition.' "
Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1205-06 (Ala. 2006)
(quoting Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23,
256 So. 2d 281, 282-83 (1971)).
Although constitutional provisions have clearly provided immunity
for the State since 1875, the issue whether county boards of education
enjoy such immunity has not always been as clear. In Kimmons, supra,
a 1920 decision, a plaintiff sued a county board of education, challenging
the board's authority to issue warrants for the construction of a school
building. This Court briefly touched on issues concerning possible
7
1200230
immunity for the board. The Court stated that the board was an
independent agency of the State for purposes of the act under which the
board had issued the warrants. However, the Court also noted that,
under that act, the board was "given the right to sue" and, thus, that the
board was subject to "an implied right to be sued." 204 Ala. at 387, 85 So.
at 777. Accordingly, the Court in Kimmons addressed the merits of the
plaintiff's claims against the board. However, the Court did not address
the immunity provided by § 14 or attempt to reconcile that provision with
its observation that the board was an agency of the State.
In Sims, supra, a plurality decision released by this Court in 1976,
plaintiffs alleged claims of negligence and breach of contract against a
county board of education. This Court again noted that a county board of
education is considered an agency of the State. However, the Court, citing
Kimmons, also stated that a board's statutory right to sue "carries with
it the implied right to be sued." 337 So. 2d at 1313. The Court in Sims
further noted that a board "can be sued 'within the scope of its corporate
power,' ... but our cases appear to have held that tort liability is not one
of those matters within the scope of its corporate power." 337 So. 2d at
8
1200230
1316 (quoting Morgan v. Cherokee Cnty. Bd. of Educ., 257 Ala. 201, 203,
58 So. 2d 134, 136 (1952)). Thus, the Court concluded that the board had
immunity regarding the negligence claims but did not have immunity
regarding the contract claims. Like the Court in Kimmons, the Court in
Sims did not address § 14.
In 2009, this Court in Hale overruled Kimmons and Sims "to the
extent that they and their progeny impose an implied 'right to be sued' on
county boards of education." 14 So. 3d at 848-49. The Court stated that
the Kimmons decision, on which the Court in Sims had relied, had
"resulted in significant confusion." 14 So. 3d at 848. In overruling
Kimmons and Sims, the Court in Hale "reassert[ed] the absolute
constitutional immunity of county boards of education." Id. The essential
reasoning supporting a finding of State immunity in Hale was
straightforward: § 14 provides absolute immunity to the State, § 14
immunity extends to agencies of the State, county boards of education are
agencies of the State, and, thus, county boards of education have absolute
immunity under § 14. Id.
9
1200230
Alabama Lockers argues that the Court in Hale was "misguided" in
its reading of Kimmons and, thus, that we should now overrule Hale
(Alabama Lockers does not address Sims). Alabama Lockers emphasizes
that the Court in Hale stated that "the Court [in Kimmons] failed to
consider that county boards of education are 'local agencies of the state'
and thus immune from suit under the constitutional bar of § 14." 14 So.
3d at 848. Alabama Lockers then asserts that the Court in Hale, in
overruling Kimmons, incorrectly stated that the Court in Kimmons had
"failed to consider" that county boards of education are agencies of the
State. Alabama Lockers notes that the Court in Kimmons did in fact
observe that the county board education in that case was an "independent
agency of the state." Kimmons, 204 Ala. at 388, 85 So. 2d at 777.
However, we believe Alabama Lockers reads too much into the first part
of the clause in Hale that it scrutinizes. The second part of that clause
provides important context, and we emphasize it here: "[T]he Court [in
Kimmons] failed to consider that county boards of education are 'local
agencies of the state' and thus immune from suit under the constitutional
bar of § 14." Hale, 14 So. 3d at 848 (emphasis added). The upshot of the
10
1200230
analysis in Hale was that the Court in Kimmons had failed to consider the
crucial application of § 14 to the fact that county boards of education are
agencies of the State. As noted, the Court in Kimmons did not address §
14 at all. When the fact that county boards of education are agencies of
the State is considered in the context of § 14, as it was in Hale, it becomes
evident that such boards are entitled to State immunity.
Alabama Lockers also broadly contends that State immunity under
§ 14 should not immunize the State from claims based on contract. In
support of that argument, Alabama Lockers cites the following portion of
Article IV, § 95, of the Alabama Constitution of 1901 (Off. Recomp.):
"There can be no law of this state impairing the
obligation of contracts by destroying or impairing the remedy
for their enforcement; and the legislature shall have no power
to revive any right or remedy which may have become barred
by lapse of time, or by any statute of this state."
Section 95 does not limit the application of the State immunity provided
by § 14 in any way. Section 95 is found in Article IV of the Alabama
Constitution, which specifically concerns the legislative department.
Section 14 is found in Article I, which is titled "Declaration of Rights."
Section 95 limits the legislature's authority to pass legislation concerning
11
1200230
contracts. However, § 14 clearly provides the State absolute immunity
against all claims, including contract claims. Section 14 -- a broad,
overarching constitutional provision -- is simply not limited by the
restriction on legislative action found in § 95.
We reaffirm our holding in Hale stating that county boards of
education are entitled to State immunity. Additionally, we note that the
law reflected in Hale is well established, having been applied in several
of our decisions since that decision was released. See, e.g., Ex parte
Wilcox Cnty. Bd. of Educ., 285 So. 3d 765, 774-75 (Ala. 2019); Ex parte
Wilcox Cnty. Bd. of Educ., 279 So. 3d 1135, 1140-41 (Ala. 2018); Ex parte
Montgomery Cnty. Bd. of Educ., 270 So. 3d 1171, 1173 (Ala. 2018); Ex
parte Wilcox Cnty. Bd. of Educ., 218 So. 3d 774, 778 (Ala. 2016); Ex parte
Jackson Cnty. Bd. of Educ., 164 So. 3d 532, 534-35 (Ala. 2014) (succinctly
rejecting a challenge to the reasoning in Hale and stating that the basis
for the decision in Hale is "sound"); Board of Sch. Comm'rs of Mobile Cnty.
v. Weaver, 99 So. 3d 1210, 1216-17 (Ala. 2012); Ex parte Montgomery
Cnty. Bd. of Educ., 88 So. 3d 837, 841-42 (Ala. 2012); Colbert Cnty. Bd. of
12
1200230
Educ. v. James, 83 So.3d 473, 478-79 (Ala. 2011); and Ex parte Monroe
Cnty. Bd. of Educ., 48 So. 3d 621, 624-25 (Ala. 2010).
The Board is entitled to State immunity under § 14, and, thus,
Alabama Lockers' action against the Board must be dismissed.
Accordingly, we grant the petition and issue a writ of mandamus directing
the circuit court to dismiss the action.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
13 | September 3, 2021 |
ee4da7bf-2a18-45e1-838e-7186a5cb2fb0 | Randolph Clay Cooper v. Garland Terrance Cooper and Rebecca Cooper Bonner | N/A | 1190855 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1190855 Randolph Clay Cooper v. Garland Terrance Cooper and Rebecca
Cooper Bonner (Appeal from Baldwin Circuit Court: CV-15-900107.80).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on August 27, 2021:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin,
Shaw, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on June 25, 2021:
Affirmed. No Opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
b691f452-6064-4dc8-be2e-b0b943952f4a | Ex parte Christine Hernandez, et al. | N/A | 1190839 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1190839 Ex parte Christine Hernandez, et al. PETITION FOR WRIT OF
MANDAMUS: CIVIL (In re: In the matter of the Estate of J.B. , an alleged
incapacitated person) (Mobile Probate Court: 18-1816).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on August 27, 2021:
Application Overruled. No Opinion. PER CURIAM - Parker, C.J., and
Bolin, Shaw, and Bryan, JJ., and Moore, Special Justice,* concur. Sellers,
Mendheim, Stewart, and Mitchell, JJ., dissent. Wise, J., recuses herself.
*Judge Terry A. Moore of the Alabama Court of Civil Appeals was appointed
to serve as a Special Justice in regard to this appeal.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on April 23, 2021:
Petition Denied. No Opinion. PER CURIAM - Parker, C.J., and Bolin,
Shaw, and Bryan, JJ., and Moore, Special Justice,* concur. Sellers,
Mendheim, Stewart, and Mitchell, JJ., dissent. Wise, J., recuses herself.
*Judge Terry A. Moore of the Alabama Court of Civil Appeals was appointed
to serve as a Special Justice in regard to this appeal.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
0f581cfa-46a3-470c-94a4-41e5f5e71f2b | Ex parte La'Darius Starks. | N/A | 1200660 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1200660
Ex parte La'Darius Starks. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: La'Darius Starks v. State of
Alabama) (Autauga Circuit Court: CC-19-124; Criminal Appeals :
CR-20-0023).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 27, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Mendheim, and Mitchell, JJ., concur. Sellers, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
47171e2d-a8c5-4ca7-a43f-d4e2f5fe7fdc | Ex parte J.C.H. | N/A | 1200625 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1200625
Ex parte J.C.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.C.H. v. J.H.) (Morgan Juvenile Court:
JU-16-598.04; Civil Appeals : 2200118).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 27, 2021:
Writ Denied. No Opinion. Sellers, J. - Bolin, Shaw, Wise, Bryan,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
c394d901-92e2-4e8a-9224-2fca5ef3dc6a | Ex parte Henry Williams Gosha. | N/A | 1200817 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200817
Ex parte Henry Williams Gosha. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Henry
Williams Gosha v. State of Alabama) (Jefferson Circuit Court:
CC-17-2876.60; Criminal Appeals : CR-20-0147).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on October 15, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
4047a2ad-345d-47b3-8c1a-7cb7bbfd7eab | Ex parte Jameelah Huriyyah Baker. | N/A | 1200259 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200259
Ex parte Jameelah Huriyyah Baker. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jameelah
Huriyyah Baker v. State of Alabama) (Madison Circuit Court: CC-19-1669;
Criminal Appeals :
CR-19-0218).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
348852b9-76c7-4187-8410-e83655c6d035 | Ex parte Karen H. Jackson. | N/A | 1200731 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200731
Ex parte Karen H. Jackson. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Karen H. Jackson v. John D.
Brewer and Jeannan Brewer) (Covington Circuit Court: CV-19-12; Civil
Appeals : 2190934).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
ab41e8e2-5b71-4f1d-9294-76ead2b19119 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200107 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200107
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michael Thomas
Scoggins, as adm inistrator of the estate of George Thomas Scoggins,
deceased v. Bobby Blankenship et al.) (Calhoun Circuit Court: CV-98-996).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Granted; Writ Issued. Mendheim, J. - Parker, C.J., and Bolin,
Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses
himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
9891fa4e-dfcb-463b-9fd4-d43c61df9597 | Ex parte Michael Todd & Matthew Tyler-Crimson Scoggins. | N/A | 1200102, 1200103, 1200104, 1200105, 1200106, 1200107 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200102
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michael Todd
Scoggins and M atthew Tyler-Crimson Scoggins v. Stephen J. Bailey et al.)
(Calhoun Circuit Court: CV-19-900730).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Granted; Writ Issued. Mendheim, J. - Parker, C.J., and Bolin,
Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses
himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
67cde4ff-f80e-4661-bdd6-60de60c770dd | Ex parte Theressia Conner. | N/A | 1200492 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200492
Ex parte Theressia Conner. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Theressia Conner v. Bertha Gibbs)
(Baldwin Circuit Court: CV-16-901311; Civil Appeals : 2190720).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
05b4ac8c-345a-487a-b5a0-66ee6372b128 | Ex parte Jeffrey J. Ickler, M.D. and Southeastern Surgical Specialists, PC. | N/A | 1200423 | Alabama | Alabama Supreme Court | 1200423
Ex parte Jeffrey J. Ickler, M.D. and Southeastern Surgical Specialists, PC.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Steven Hart, as Personal
Representative of the Estate of Elizabeth Jane Hart, deceased v. Jeffrey J. Ickler,
M.D., et al.) (Mobile Circuit Court: CV-16-901761).
ORDER
August 27, 2021
IN THE SUPREME COURT OF ALABAMA
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama
/ra | August 27, 2021 |
86c81783-e82b-4dd6-9b91-31ab288da317 | Christopher Mark Kaminski v. Alabama State Bar | N/A | 1200083 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200073
____________________
Alabama State Bar
v.
Christopher M. Kaminski
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200074
____________________
Alabama State Bar
v.
Amy C. Marshall
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
____________________
1200083
____________________
Christopher Mark Kaminski
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200084
____________________
Amy Cauthen Marshall
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
SHAW, Justice.1
1These cases were previously assigned to another Justice; they were
reassigned to Justice Shaw.
2
1200073; 1200074; 1200083; 1200084
In these consolidated appeals, the Alabama State Bar ("the Bar")
appeals from an order of Panel II of the Disciplinary Board of the Alabama
State Bar ("the Board") suspending both Christopher Mark Kaminski and
Amy Cauthen Marshall from the practice of law. Kaminski and Marshall
also each cross-appeal the Board's order. We remand the matters with
directions.
Facts and Procedural History
The material facts in these matters are undisputed: Kaminski,
formerly a judge of the Coffee District Court, and Marshall, an Enterprise
attorney who routinely appeared before the Coffee District Court, secretly
engaged in an extramarital affair, during which Kaminski admittedly both
appointed Marshall as counsel in pending cases and took judicial action
in cases in which Marshall appeared as counsel of record, without
disclosing their relationship to the parties. During the proceedings below,
Kaminski and Marshall married each other and Marshall assumed
Kaminski's last name. To avoid confusion, this opinion will refer to
Marshall by her prior surname, under which the disciplinary matter
against her was originally initiated and by which she is consistently
3
1200073; 1200074; 1200083; 1200084
referred to in the record. Kaminski and Marshall waived the filing of
formal charges against them and entered "blind" pleas in the disciplinary
matters initiated against them by the Bar.2
At the ensuing disciplinary hearing, the Bar recounted the
misconduct to which Kaminski and Marshall had previously pleaded
2Specifically, Kaminski's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 8.4(a) [regarding the
violation, or the attempt to violate the Rules of Professional
Conduct, or knowingly assisting or inducing another to do so],
(d) [regarding engaging in conduct prejudicial to the
administration of justice,] and (g) [regarding engaging in
conduct adversely reflecting on the lawyer's fitness to practice
law], Alabama Rules of Professional Conduct."
Marshall's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 1.7(b) [prohibiting a lawyer's
representation of a client if the representation may be
materially limited by the lawyer's own interest, unless the
client consents after consultation], 8.4(d) [regarding engaging
in conduct prejudicial to the administration of justice], (f)
[prohibiting knowingly assisting a judge in conduct that
violates the Canons of Judicial Ethics,] and (g) [regarding
engaging in conduct adversely reflecting on the lawyer's fitness
to practice law], Alabama Rules of Professional Conduct."
4
1200073; 1200074; 1200083; 1200084
guilty; presented authorities from other states involving allegedly
comparable conduct and standards similar to the Alabama Standards for
Imposing Lawyer Discipline ("the Standards"), each of which resulted in
disbarment or a minimum of two years' suspension; and cited the
particular Standards that it maintained applied in determining
appropriate punishment for the acknowledged misconduct in these
matters.3
Thereafter, Kaminski and Marshall both testified before the Board,
called numerous character witnesses, and presented other evidence.
Primarily, their evidence related that both Kaminski and Marshall were
remorseful for their misconduct; that both were assets to the legal
community within Coffee County; that Kaminski had played only a
limited role in Marshall's appointments and the approval of her related
fee declarations; that Kaminski never showed Marshall any discernible
favoritism; and that both Kaminski, who was required to resign from the
bench as a result of the above-described misconduct, and Marshall had,
3These included Standards 4.3, 4.5, 5.1, 5.2, and 7.0.
5
1200073; 1200074; 1200083; 1200084
before the institution of the disciplinary proceedings, already experienced
"public-sham[ing]" within their local media and community when their
relationship was disclosed.
In summation, the Bar reiterated its belief regarding the applicable
discipline range and argued the following regarding aggravating
circumstances:
"[A]s far as aggravating circumstances, [the Bar would] like
the Board to consider the following: Dishonest or selfish
motive, a pattern of misconduct, and multiple offenses. This
happened over a long period of time. This was not a one-time
thing. It happened over, at least by their own testimony, a
five- or six-month period."
It further argued that the negative publicity that Kaminski and Marshall
cited as a mitigating circumstance actually amounted to evidence of
damage to the integrity of the legal profession and the legal system in the
eyes of the public resulting from their misconduct. The Bar recommended
a minimum of a three-year suspension for both Kaminski and Marshall.
The Board's subsequent order suspended Kaminski from the practice
of law for 180 days and suspended Marshall from the practice of law for
90 days, with Marshall's suspension to begin immediately upon the entry
6
1200073; 1200074; 1200083; 1200084
of the order and Kaminski's suspension to begin 91 days after entry of the
order. In its order, the Board recounted the specific rules of the Alabama
Rules of Disciplinary Procedure that Kaminski and Marshall were charged
with violating and also detailed, without reference to any supporting
Standard on which the Board relied, the Board's determination of
suspension as the "appropriate discipline."
The order included, without reference to any evidentiary finding on
which the Board relied, the Board's conclusions as to the existence of each
individual aggravating and mitigating circumstance prescribed in
Standard 9.0 and a corresponding indication that each circumstance
either did or did not exist for Kaminski or for Marshall. More specifically,
the Board found the existence of only two aggravating circumstances:
that both Kaminski and Marshall had exhibited dishonest or selfish
motives and that each possessed substantial experience in the practice of
law. The Board found the existence of the following mitigating
circumstances: that neither Kaminski nor Marshall had a prior
disciplinary record; that both had made a timely, good-faith effort to
rectify any consequences of their misconduct; that both had provided full
7
1200073; 1200074; 1200083; 1200084
disclosure and cooperation to the Board during the disciplinary
proceedings; and that both had exhibited remorse for their misconduct.
The Bar appealed, and Kaminski and Marshall cross-appealed.
Standard of Review
" 'The standard of review applicable to an
appeal from an order of the Disciplinary Board is
"that the order will be affirmed unless it is not
supported by clear and convincing evidence or
misapplies the law to the facts." Noojin v. Alabama
State Bar, 577 So. 2d 420, 423 (Ala.1990), citing
Hunt v. Disciplinary Board of the Alabama State
Bar, 381 So. 2d 52 (Ala.1980).'
"Davis v. Alabama State Bar, 676 So. 2d 306, 308 (Ala.1996)."
Cooner v. Alabama State Bar, 59 So. 3d 29, 37 (Ala. 2010).
Discussion
On appeal, the Bar argues that the Board's discipline was so lenient
as to be "manifestly unjust" under the Standards, which, it argues,
mandate, at a minimum, suspensions lasting several years. In their cross-
appeals, Kaminski and Marshall argue that the Board erred, on various
grounds, in imposing their respective terms of suspension and in failing,
instead, to impose lesser punishments under the applicable Standards.
8
1200073; 1200074; 1200083; 1200084
Both the Bar and Kaminski and Marshall, in support of their respective
claims of error, challenge certain of the Board's findings as to the
existence of aggravating and mitigating circumstances as clearly
erroneous. See Tipler v. Alabama State Bar, 866 So. 2d 1126 (Ala. 2003)
(explaining that the "clearly erroneous" standard of review applies to the
findings of fact of the Board), and Alabama State Bar Ass'n v. Dudley, 95
So. 3d 777, 779-80 (Ala. 2012) (observing that a finding is "clearly
erroneous" when, although there is evidence to support it, this Court,
based on the evidence, is left with the definite and firm conviction that a
mistake has been made).
Rule 4.2(b)(6), Ala. R. Disc. P., provides, in part:
"The Disciplinary Hearing Officer shall make written findings
of fact and conclusions of law as directed by the Disciplinary
Board, which shall be captioned 'Report and Order.' ....
"....
"(C) The Report and Order shall contain:
"(i)
A
finding
of
fact
and
conclusion of law as to each allegation
of misconduct, which, upon acceptance
by the Disciplinary Board, shall enjoy
the same presumption of correctness as
9
1200073; 1200074; 1200083; 1200084
the judgment of a trier of fact in a
nonjury civil proceeding in which
evidence has been presented ore tenus;
"(ii) A finding as to whether the
respondent attorney is guilty or not
guilty of the misconduct charged; [and]
"(iii) A finding as to the discipline
to be imposed, with reference, where
appropriate, to the Alabama Standards
for Imposing Lawyer Discipline."4
(Emphasis added.)
All parties take issue with the Board's findings as to the existence
of various aggravating and mitigating circumstances. The Bar contends
that the Board erroneously failed to find additional aggravating
circumstances and also improperly found the existence of certain
mitigating circumstances. Both Kaminski and Marshall contend that the
Board's findings as to the existence of each aggravating circumstance were
correct, but they assert that the Board erroneously failed to find the
4Although findings and conclusions regarding each allegation of
misconduct and guilt are absent from the Board's order, presumably the
Board determined that such findings and conclusions were unnecessary
in light of the guilty pleas.
10
1200073; 1200074; 1200083; 1200084
existence of at least two additional mitigating circumstances that, they
say, applied to each of them. The Bar also maintains that the Board's
order is legally insufficient either to demonstrate the relation of the
discipline imposed to the allegations of misconduct to which Kaminski and
Marshall pleaded guilty and/or to allow for meaningful appellate review.
More specifically, it contends that, in disciplining Kaminski and Marshall,
the Board failed to consider, to follow, or to cite to the relevant Standards
supporting that discipline.
With regard to Bar disciplinary proceedings, this Court has two
distinct roles: one stemming from our independent duties arising from
rules authorizing appellate review of orders entered in disciplinary
proceedings and one from our inherent authority to supervise the Bar. In
Simpson v. Alabama State Bar, 294 Ala. 52, 56, 311 So. 2d 307, 309
(1975), this Court stated that the Board of Bar Commissioners, which
appoints the members of the Board, see Rule 4, Ala. R. Disc. P., "was
created in aid of this [C]ourt," which "retains the power to ... inquire into
the merits of any disciplinary proceeding, and to take any action it sees fit
in such matters." (Emphasis added.) Further, this Court "in any case of
11
1200073; 1200074; 1200083; 1200084
suspension or disbarment from practice ... may ... inquire into the merits
of the case and take any action agreeable to its judgment." § 34-3-43(a)(5),
Ala. Code 1975.
Based on the record before us and considering the evidence adduced
in the underlying disciplinary proceedings, it is unclear to this Court how
-- or more precisely based on what evidence -- the Board could have
reached some of its findings regarding the existence or nonexistence of
certain aggravating and mitigating circumstances. More critical than the
absence of specific underlying factual findings, though the Board's order
also omits, in "determin[ing] the appropriate discipline in this matter,"
reference to any supporting Standards pursuant to which that discipline
was allegedly imposed -- as Rule 4.2(b)(6)(C)(iii) specifically requires. The
Board had an independent duty to comply with Rule 4.2, and this Court,
which is called upon to approve the Board's actions, is unable to do so in
the present matters without either further clarification or additional
information. The indicated omissions prevent this Court from engaging
in the review necessary to determine whether each unexplained finding
enumerated by the Board and recounted above is " ' "supported by clear
12
1200073; 1200074; 1200083; 1200084
and convincing evidence" ' " or to consider, based on those findings, the
propriety of the Board's disciplinary sanctions. Cooner, 59 So. 3d at 37.
This Court's precedent suggests that remanding the matters for the entry
of an order containing the necessary findings is an appropriate remedy in
such cases. See Cooner, 59 So. 3d at 39. See also Cooner v. Alabama
State Bar, 145 So. 3d 1 (Ala. 2013) (remanding a second time to address
similar deficiencies). Cf. Alabama State Bar v. R.G.P., 988 So. 2d 1005
(Ala. 2008) (vacating an order of the Board of Disciplinary Appeals of the
Alabama State Bar because the order did not provide the basis for
reversing a disciplinary decision of the Board).
Conclusion
The parties have raised issues regarding whether the Board erred
in its findings as to the existence of aggravating and mitigating
circumstances. Because the Board's order does not provide a sufficient
explanation of its holdings so as to allow meaningful review under Rule
12(f), Ala. R. Disc. P., and § 34-3-43(a)(5), Ala. Code 1975, we remand the
matters for the Board to issue a new order that specifically provides, as to
each finding by the Board concerning the existence of an aggravating or
13
1200073; 1200074; 1200083; 1200084
mitigating circumstance, the evidentiary basis on which the Board relied
in reaching its conclusion and that references, as provided in Rule
4.2(b)(6)(C)(iii), the supporting Standards on which the Board relied in
determining that the terms of suspension imposed were appropriate. See
Cooner, 59 So. 3d at 39. The Board shall make due return to this Court
within 42 days of the issuance of this opinion.
1200073 -- REMANDED WITH DIRECTIONS.
1200074 -- REMANDED WITH DIRECTIONS.
1200083 -- REMANDED WITH DIRECTIONS.
1200084 -- REMANDED WITH DIRECTIONS.
Parker, C.J., and Bolin, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Wise, Bryan, and Sellers, JJ., concur in the result.
14 | September 3, 2021 |
7dd00418-e18a-4048-842e-83e1942ab6c4 | Ex parte J. M. S. | N/A | 1200176 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200176
Ex parte J. M. S. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: J. M. S. v. State of Alabama) (Lamar
Circuit Court: CC-16-192; Criminal Appeals :
CR-18-0972).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
7e16b823-6af3-491e-8f45-e71e5e4b1fd2 | Ex parte William Guy Krebs. | N/A | 1200695 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200695
Ex parte William Guy Krebs. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: William Guy Krebs v. Melissa Jo
Krebs) (Shelby Circuit Court: DR-11-900422.02; Civil Appeals : 2190451).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
b7787376-f200-4a8b-858c-391b62efa145 | Ex parte Mobile Infirmary Association. | N/A | 1200421 | Alabama | Alabama Supreme Court | 1200421
Ex parte Mobile Infirmary Association. PETITION FOR WRIT OF MANDAMUS:
CIVIL (In re: Steven Hart, as Personal representative of the Estate of Elizabeth Jane
Hart, deceased v. Jeffrey J. Ickler, M.D., et al.) (Mobile Circuit Court:
CV-16-901761).
ORDER
August 27, 2021
IN THE SUPREME COURT OF ALABAMA
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama
/ra | August 27, 2021 |
922fcb73-262f-4957-a46a-c6359b017128 | Branch, et al. v. Branch | N/A | 1200007 | Alabama | Alabama Supreme Court | Rel: August 20, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200007
_________________________
Theodore Branch, Jr., Denise Whisenhunt, Wanda Standfield,
Yulonda Branch, Monique Branch, and Darin Branch
v.
Angela Branch
Appeal from Walker Circuit Court
(CV-20-900117)
STEWART, Justice.
Theodore Branch, Jr., Denise Whisenhunt, Wanda Standfield,
Yulonda Branch, Monique Branch, and Darin Branch appeal from an
1200007
order of the Walker Circuit Court ("the circuit court") dismissing their
action challenging their father's will based on a lack of subject-matter
jurisdiction. For the reasons discussed herein, we affirm the order of
dismissal.
Facts and Procedural History
Theodore W. Branch, Sr. ("the father"), died testate December 3,
2019, survived by his seven children: Angela Branch, Theodore Branch,
Jr., Denise Whisenhunt, Wanda Standfield, Yulonda Branch, Monique
Branch, and Darin Branch. On January 16, 2020, Angela petitioned the
Walker Probate Court ("the probate court") to probate a will that the
father had executed on October 31, 2018 ("the will"). The will devised all
of the father's property to Angela and omitted any reference to the father's
other six children (hereinafter referred to collectively as "the omitted
children"). On March 6, 2020, the omitted children filed a response to
Angela's petition to probate the will in which they contested the validity
of the will, asserting that the father had not been competent to execute
the will and that Angela had exerted undue influence to procure the
father's execution of the will and to obtain from the father the transfer of
2
1200007
certain real and personal property. The omitted children also asserted
that a previous will executed by the father in 2017 better reflected his
final wishes. On March 10, 2020, the omitted children filed a petition in
the probate court, requesting the removal of the administration of the
father's estate to the circuit court; the probate court never acted on that
petition.
On April 24, 2020, the omitted children filed in the circuit court
what they styled as a "Petition to Contest Purported Will." In that
petition, the omitted children raised the same allegations and arguments
that they had raised in their will contest filed in the probate court,
including seeking the cancellation of certain conveyances of the father's
real and personal property. The omitted children also later filed in the
circuit court a motion for a temporary restraining order in which they
asked the circuit court to restrain all parties from damaging, depreciating,
or using estate assets until the circuit court entered a final judgment in
the circuit-court action.1 Angela filed a motion to dismiss the circuit-court
1Both Angela and the omitted children filed requests in the probate
court for the appointment of a special administrator ad colligendum. See
3
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action on several grounds, including the circuit court's lack of subject-
matter jurisdiction.
The probate court entered an order on June 17, 2020, finding that
the omitted children had not proven that the father had lacked
competency at the time of the execution of the will or that the will had
been procured by undue influence. On the same day, the probate court
entered an order admitting the will to probate and an order granting
letters testamentary to Angela. On August 3, 2020, Angela filed in the
circuit court a brief in support of her motion to dismiss in which she
argued that the circuit court lacked subject-matter jurisdiction over the
circuit-court action because the omitted children had filed their petition
to contest the will in the circuit court before the will had been admitted
to probate, because the omitted children had already filed a will contest
in the probate court, and because the probate court had not transferred
the administration of the estate to the circuit court. Angela attached to
her brief the probate court's June 17, 2020, order admitting the will to
§ 43-2-47, Ala Code 1975, and note 3, supra.
4
1200007
probate. In response, the omitted children asserted that the circuit-court
action involved a request to cancel certain conveyances of the father's real
and personal property and a request for a temporary restraining order,
that those requests sought equitable relief, and that, therefore, only the
circuit court had jurisdiction to consider those requests. The omitted
children also stated that they were not seeking to appeal the probate
court's decision on the will contest or to remove the proceedings in the
probate court.
On August 12, 2020, the circuit court entered an order purporting to
transfer the administration of the father's estate, including the omitted
children's will contest, from the probate court to the circuit court. The
circuit court also entered an order denying Angela's motion to dismiss and
an order granting the omitted children's motion for a temporary
restraining order. On Angela's motion to reconsider, however, the circuit
court reversed course and entered an order concluding that it did not have
subject-matter jurisdiction. The circuit court, therefore, dismissed the
omitted children's action. The omitted children appealed.
5
1200007
Discussion
This Court reviews a ruling on a motion to dismiss based on a lack
of subject-matter jurisdiction without a presumption of correctness.
Newman v. Savas, 878 So. 2d 1147, 1148 (Ala. 2003). The circuit-court
action was commenced when the omitted children filed a petition to
contest the will. In Jones v. Brewster, 282 So. 3d 854 (Ala. 2019), this
Court discussed how probate courts and circuit courts may acquire
jurisdiction over will contests and the administration of estates:
" ' " 'In Alabama, a will
may be contested in two
ways: (1) under § 43-8-190,
Ala.
Code
1975,
before
probate, the contest may be
instituted in the probate
court
or
(2)
under
§
43-8-199, Ala. Code 1975,
after probate and within six
months thereof, a contest
may be instituted by filing a
complaint in the circuit
court of the county in which
the will was probated.'
" ' "Stevens v. Gary, 565 So. 2d 73, 74
(Ala. 1990)."
" 'Bond v. Pylant, 3 So. 3d 852, 854 (Ala. 2008).'
6
1200007
"Burns v. Ashley, 274 So. 3d 970, 973 (Ala. 2018).'
"Under Alabama law, a circuit court, under specified
conditions delineated in the pertinent statute, can obtain
subject-matter jurisdiction over a will contest or the
administration of an estate. The probate court has general and
original jurisdiction over matters involving the administration
of estates and the probating of wills. See Ala. Const. 1901, §
144; and § 12-13-1, Ala. Code 1975. Pursuant to § 43-8-190,
Ala. Code 1975, the probate court has jurisdiction over will
contests where a will has not been admitted to probate.
Section 43-8-190, Ala. Code 1975, states, in pertinent part:
" 'A will, before the probate thereof, may be
contested by any person interested therein, or by
any person, who, if the testator had died intestate,
would have been an heir or distributee of his
estate, by filing in the court where it is offered for
probate allegations in writing that the will was not
duly executed, or of the unsoundness of mind of the
testator, or of any other valid objections thereto ....'
"A party, however, has the statutory right to seek a
transfer of a will contest from the probate court to the circuit
court pursuant to § 43-8-198, Ala. Code 1975, which reads:
" 'Upon the demand of any party to the
contest, made in writing at the time of filing the
initial pleading, the probate court, or the judge
thereof, must enter an order transferring the
contest to the circuit court of the county in which
the contest is made, and must certify all papers
and documents pertaining to the contest to the
clerk of the circuit court, and the case shall be
7
1200007
docketed by the clerk of the circuit court and a
special session of said court may be called for the
trial of said contest or, said contest may be tried by
said circuit court at any special or regular session
of said court. The issues must be made up in the
circuit court as if the trial were to be had in the
probate court, and the trial had in all other
respects as trials in other civil cases in the circuit
court ....'
"To comply with [§ 43-8-198], the following prerequisites must
be met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested, see
Hooper v. Huey, 293 Ala. 63, 67, 300 So. 2d 100, 104 (1974),
disapproved of on other grounds, Bardin v. Jones, 371 So. 2d
23 (Ala. 1979); (2) the party seeking the transfer must file a
written demand for the transfer in the probate court; (3) the
transfer demand must be filed at the time of the filing of the
will-contest complaint or other initial pleading; (4) the probate
court must enter a written order transferring the will contest
to the circuit court; (5) the probate court must certify the
probate-court record pertaining to the will contest to the
circuit-court clerk; (6) the circuit-court clerk shall docket the
case in the circuit court; and (7) the circuit court must set the
will contest for a trial at a regular or a special session of court.
"After a will has been admitted to probate in the probate
court, jurisdiction in the circuit court cannot be invoked
pursuant to a transfer under § 43-8-198. Within six months
following the admission of the will to probate, however, a
person with an interest in the will may file a will contest
directly in the circuit court pursuant to § 43-8-199, Ala. Code
1975, which provides:
8
1200007
" 'Any person interested in any will who has
not contested the same under the provisions of this
article, may, at any time within the six months
after the admission of such will to probate in this
state, contest the validity of the same by filing a
complaint in the circuit court in the county in
which such will was probated.' "
282 So. 3d at 857-58.
The omitted children contend that the circuit court had jurisdiction
over their action pursuant to § 43-8-199, Ala. Code 1975. Citing Noe v.
Noe, 679 So. 2d 1057 (Ala. Civ. App. 1995), the omitted children appear
to contend that a will contest may properly be "moved" from a probate
court to a circuit court, and that the circuit court may exercise jurisdiction
of the will contest under § 43-8-199, without the necessity of filing "a new
or different complaint from the one filed in the probate court" in the
circuit court. In Noe, the contestants filed a will-contest complaint in the
Jefferson Probate Court after the will had been admitted to probate, and
then the contestants filed a "copy" of that complaint in the Jefferson
Circuit Court, seeking to initiate a will contest under § 43-8-199 in that
circuit court. The issue in that case was whether the identical filing
constituted an original complaint in the circuit court. The issue was not
9
1200007
whether the probate court or the circuit court had jurisdiction over the
will contest, as is the case here. The omitted children appear to
misunderstand the holding in Noe and the jurisdictional requirements of
§ 43-8-199. Noe has no application to the current case.
For the circuit court in this case to acquire jurisdiction over the
omitted children's will contest pursuant to § 43-8-199, the omitted
children were required to file a petition in the circuit court after, and
within six months of, the admission of the will to probate. However, the
omitted children's petition was filed in the circuit court on April 24, 2020,
which was before the will was admitted to probate on June 17, 2020.
Moreover, to maintain a will contest in circuit court under § 43-8-199, the
omitted children must not have already contested the will. However, the
omitted children had already commenced a will contest in the probate
court on March 6, 2020. Accordingly, because the omitted children had
already commenced a will contest in the probate court, and because they
had commenced their will contest in the circuit court before the will was
admitted to probate, the omitted children did not strictly comply with §
43-8-199 so as to invoke the circuit court's jurisdiction under that statute
10
1200007
to consider their will contest. See Jones, 282 So. 3d at 858 ("In a long line
of cases, this Court has held that strict compliance with the statutory
language pertaining to a will contest is required to invoke the jurisdiction
of the appropriate court.").
The only other statute under which the circuit court could have
obtained jurisdiction over the will contest is § 43-8-198, Ala. Code 1975,
which permits the transfer of a will contest from a probate court to a
circuit court under certain circumstances. For the circuit court to acquire
jurisdiction pursuant to § 43-8-198, however, the omitted children were
required to file with their initial pleading, and before the will was
admitted to probate, a request to transfer the contest to the circuit court.
See Newman, 878 So. 2d at 1149 (explaining that the transfer request
must be filed with the initial pleading, which is " 'the filing of the contest
itself in the probate court.' Marshall v. Vreeland, 571 So. 2d 1037, 1038
(Ala. 1990)."). The omitted children did not file in the probate court a
request to transfer the will contest with their initial filing, and the
probate court never entered an order transferring the will contest to the
11
1200007
circuit court. Accordingly, the omitted children did not invoke the circuit
court's jurisdiction to entertain their will contest pursuant to § 43-8-198.
The omitted children also argue that, pursuant to § 12-11-41, Ala.
Code 1975, the circuit court had jurisdiction over the administration of the
father's estate. Probate courts have original jurisdiction over the
administration of estates pursuant to Ala. Const. 1901 (Off. Recomp.), art.
VI, § 144; and § 12-13-1, Ala. Code 1975. Although the administration of
an estate can be removed from a probate court to a circuit court pursuant
to § 12-11-41, " 'the filing of a petition for removal in the circuit court and
the entry of an order of removal by that court are prerequisites to that
court's acquisition of jurisdiction over the administration of the estate ....' "
Jones, 282 So. 3d at 858 (quoting DuBose v. Weaver, 68 So. 3d 814, 822
(Ala. 2011)). In this case, the circuit court entered an order on August 12,
2020, purporting to transfer the administration of the estate and the will
contest from the probate court. There is no statutory authority permitting
a circuit court to transfer a will contest to itself. Moreover, for the circuit
court to acquire jurisdiction over the administration of the estate, the
omitted children were required to file a petition for removal in the circuit
12
1200007
court. The omitted children filed a petition to remove the administration
of the estate in the probate court -- not the circuit court as required by §
12-11-41. Accordingly, insofar as the circuit-court action could be
construed as an action seeking the administration of the father's estate,
the omitted children did not invoke the circuit court's jurisdiction
pursuant to § 12-11-41.2
The omitted children also assert that the circuit-court action was
equitable in nature and was not a will contest. More specifically, the
omitted children assert that their request to cancel conveyances of real
and personal property and their request for a temporary restraining order
were equitable in nature and that, because the probate court does not
have equitable jurisdiction, they were required to seek that relief in the
circuit court. See Daniel v. Moye, 224 So. 3d 115, 140 (Ala. 2016)
(explaining that, with the exception of a few counties, probate courts lack
2The omitted children also assert that, "[w]hen this matter was filed
in circuit court, it was removed from the probate court to a court of
equity." Omitted children's brief at p. 18. As explained above, however,
there are procedural prerequisites that must be met to remove the
administration of an estate from a probate court to a circuit court, see
§12-11-41, and those prerequisites were not met in this case.
13
1200007
equitable jurisdiction). The omitted children's argument fails for several
reasons. As explained above, the omitted children commenced the circuit-
court action by filing a petition to contest the will. Insofar as the omitted
children attempted to join claims challenging the previous execution of
deeds and other transactions related to the father's estate, this Court has
held that a will-contest action is limited to determining the validity of the
will and that other claims, such as those to cancel deeds, are not properly
joined in a will-contest action. See Ex parte Walter, 202 Ala. 281, 284, 80
So. 119, 122 (1918) (holding that matters concerning the execution of a
deed and the sale of personal property were collateral and immaterial in
a will-contest proceeding); and Nesmith v. Vines, 248 Ala. 72, 73, 26 So.
2d 265, 266 (1946)(same); see also Daniel v. Moye, 224 So. 3d at 140
(holding that "the circuit court would have subject-matter jurisdiction over
properly pleaded claims for an accounting and alleging improper inter
vivos transfers ... as part of the general administration of [a decedent's]
estate" only in a properly transferred action to administer an estate).
Furthermore, insofar as the omitted children assert that their
request for a temporary restraining order rendered the circuit-court action
14
1200007
equitable in nature, the omitted children did not request a temporary
restraining order in their will-contest petition. Instead, they filed a motion
for a temporary restraining order after they had already commenced the
will-contest action. As explained above, the circuit court lacked subject-
matter jurisdiction to entertain the omitted children's will contest and, as
Angela points out, the circuit court could not enter temporary injunctive
relief in the circuit-court action because it lacked subject-matter
jurisdiction over that action. See, e.g., Citizenship Tr. v. Keddie-Hill, 68
So. 3d 99, 106 (Ala. 2011)(holding that a trial court's order granting
preliminary injunctive relief was due to be vacated when the trial court
lacked subject-matter jurisdiction to adjudicate issues in a civil proceeding
that would have been appropriately decided in a criminal proceeding).
We also note that the relief requested by the omitted children in
their motion for a temporary restraining order related to the protection
and preservation of assets of an estate. Those are matters properly
handled as part of the administration of an estate, which falls under the
probate court's original jurisdiction. See Ala. Const. 1901 (Off. Recomp.),
art. VI, § 144; and § 12-13-1, Ala. Code 1975. As explained above, the
15
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estate administration was never properly removed from the probate court
to the circuit court. Furthermore, the preservation of estate assets sought
in the omitted children's motion for a temporary restraining order could
have been accomplished in the probate-court action, pending the grant of
letters testamentary, by the appointment of an administrator ad
colligendum, which both Angela and the omitted children requested. See
§ 43-2-47(a), Ala. Code 1975; see also note 1, supra.3
The circuit court lacked subject-matter jurisdiction to consider the
omitted children's action because they did not strictly comply with
statutory prerequisites to invoke that court's jurisdiction. Therefore, the
circuit court correctly dismissed the action.
3Section 43-2-47(a), Ala. Code 1975, provides:
"The judge of probate may, in any contest respecting the
validity of a will, or for the purpose of collecting the goods of a
deceased, or in any other case in which it is necessary, appoint
a special administrator, authorizing the collection and
preservation by him of the goods of the deceased until letters
testamentary or of administration have been duly issued."
The authority of any appointed special administrator ceases upon
the grant of letters testamentary. See § 43-2-47(d).
16
1200007
Conclusion
For the foregoing reasons, the circuit court's order dismissing the
omitted children's action based on a lack of subject-matter jurisdiction is
affirmed.
AFFIRMED.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur.
17 | August 20, 2021 |
5962eb06-14f4-4e3b-adf3-9e5dc9d6abf9 | Penney v. Penney et al. | N/A | 1200086 | Alabama | Alabama Supreme Court | Rel: August 27, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
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Sandra Penney
v.
Michael Shay Penney and Emily Penney
Appeal from Marshall Circuit Court
(CV-19-900053)
STEWART, Justice.
Sandra Penney appeals from a judgment of the Marshall Circuit
Court ("the trial court"), entered after bench trial, concluding, among
other things, that Sandra, Michael Shay Penney ("Shay"), and Emily
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Penney had been partners in an implied partnership to operate a poultry-
farming business in Marshall County. For the reasons explained below,
we affirm the trial court's judgment.
Facts and Procedural History
Shay and Emily ("the plaintiffs") sued Sandra in the trial court
asserting a claim of unjust enrichment and requesting injunctive relief.
The plaintiffs sought title to certain farm property or, in the alternative,
compensation from Sandra. Sandra is Shay's mother and Emily's mother-
in-law. Thomas Penney, who died in 2017, was Sandra's husband and
Shay's father.
In their complaint, the plaintiffs alleged the following facts. In 2002,
Thomas, Sandra, Shay, and Emily (hereinafter referred to collectively as
"the Penneys"), borrowed money from Alabama Farm Credit ("AFC") to
purchase multiple parcels of farmland. The security agreement associated
with that loan, and the mortgage on the purchased properties, were signed
by the Penneys. In 2003, Thomas and Sandra purchased, in part with
funds borrowed from AFC, a farm that would become known as the
"Windmill Road farm." That property was deeded to Thomas and Sandra
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as joint tenants with the right of survivorship. However, soon after, that
property was used as collateral to secure another loan to help finance the
Penneys' poultry-farming operations. The promissory note and mortgage
associated with the loan were signed by the Penneys. The Windmill Road
farm is adjacent to a farm owned by the plaintiffs ("the plaintiffs' farm").
From the time they were purchased, both farms have been used to conduct
poultry-farming operations.
In 2006, the Penneys signed an additional loan agreement. The
funds from that loan were to be used to upgrade equipment on the farms.
Over the next decade, the Penneys obtained a series of additional loans for
similar purposes. Those loans were often secured by both the Windmill
Road farm and the plaintiffs' farm. In 2017, the plaintiffs' residence was
destroyed in a fire. Due to the priority of the Penneys' debt obligations to
the AFC, the insurance proceeds paid out as a result of the fire, instead
of being used to rebuild the residence, were largely applied toward
Thomas and Sandra's debt on the Windmill Road farm. The plaintiffs later
obtained a separate loan to rebuild their residence.
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According to the complaint, the Windmill Road farm, on which
Thomas and Sandra resided, and the plaintiffs' farm, on which the
plaintiffs resided, were operated as one poultry farm. The approximate
value of the poultry-farming business was $820,000, and the remaining
balance on various loans associated with the poultry-farming business was
approximately $470,000. The plaintiffs had worked and maintained the
poultry farm for the previous 15 years. The plaintiffs had made payments
on the various loans and the property taxes on the farmland for over five
years using the income from the poultry-farming business. Sandra
contributed no labor to the poultry-farming business.
The complaint further alleged that Thomas had intended for the
Windmill Road farm to pass to the plaintiffs upon his death. The
complaint states that the Windmill Road farm was devised to the
plaintiffs in Thomas's will. Thomas, however, did not seek legal counsel
in drafting his will, and he was unaware that his desire to devise the
Windmill Road farm could not be accomplished because the deed to that
property listed Sandra as a co-owner with the right of survivorship.
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In the complaint, the plaintiffs requested an injunction to prevent
Sandra from selling the Windmill Road farm. Additionally, the plaintiffs
sought ownership of the Windmill Road farm. In the alternative, the
complaint asked for damages in the amount required to compensate the
plaintiffs for the money and labor they had invested in the Windmill Road
farm. The plaintiffs also sought a restraining order to prevent Sandra
from going onto the plaintiffs' farm. Sandra denied the averments in the
complaint and made no counterclaims. On March 29, 2019, the trial court
entered a temporary injunction that prevented Sandra from selling the
Windmill Road farm until a final judgment was entered.
The trial court held a bench trial on January 30, 2020, at which it
received testimony from a number of witnesses. Kristi Beavers testified
that she had witnessed Thomas sign a document, which purported to be
his will, expressing his intent to devise the Windmill Road farm to the
plaintiffs upon his death. The document was admitted into evidence
despite Sandra's objection. The trial court specified that it was making no
findings regarding the validity of the purported will and that it would
leave that matter to be decided in the probate court.
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Greg Copeland, an executive of AFC, testified that he had had
dealings with the Penneys since the 1990s and that Thomas and Sandra
had purchased the Windmill Road farm. He noted that the Windmill Road
farm was adjacent to the plaintiffs' farm. Copeland testified that Thomas
and Sandra had made a down payment of $37,315 on the Windmill Road
farm. Later, he said, Thomas, Sandra, and the plaintiffs entered into loans
with AFC pursuant to which the Windmill Road farm and the plaintiffs'
farm were used to secure the loans. Copeland testified that, "from a
security standpoint," the Penneys "were tied together," although the deed
to the Windmill Road farm was in the name of Thomas and Sandra only.
Copeland also testified that money from the plaintiffs' insurance proceeds
stemming from the house fire had been applied to AFC loans for the
Windmill Road farm and that the plaintiffs had had to secure separate
funding to rebuild their residence. Copeland further testified that the
plaintiffs primarily ran the poultry-farming operations and that he
primarily interacted with Emily. Copeland also explained that "farm-
type" loans differed from traditional loans, noting that repayment of a
"farm-type" loan is matched with the income stream of the farm operation
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and that payments are made directly from the "poultry assignment" -- i.e.,
when chicken purchasers make payment for chickens from the farm at
regular intervals, a preset amount is paid directly to AFC. A record of the
assignment account for the poultry-farming operations conducted on the
Penneys' farms was admitted into evidence.
Lindsey Goodwin, an employee of AFC from 2012 to 2018, testified
that, during her time of employment with AFC, Thomas and Sandra were
in poor health and that the plaintiffs oversaw the poultry-farming
operations conducted on the Windmill Road farm and the plaintiffs' farm.
Sandra testified that Thomas quit his job as a truck driver shortly
after they had purchased the Windmill Road farm so he could focus on the
farm. Sandra stated that, after her health and Thomas's health declined
around 2013, they relied on several individuals, including Shay, Emily,
and hired help, to perform labor on their farm. Sandra explained that,
when she and Thomas purchased the Windmill Road farm, she paid
$40,000 as a down payment after placing $10,000 to hold it. She testified
that the mortgage on the Windmill Road farm was paid entirely through
the "chicken house check" and that she and Thomas had paid their
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household bills themselves. Sandra testified that she had moved from the
Windmill Road farm a few months after Thomas died and that she
planned to sell the farm. She stated that she believed Shay wanted to sell
the Windmill Road farm, based upon conversations she had had with him.
During cross-examination, Sandra confirmed that the deed to the
Windmill Road farm listed her and Thomas as co-owners with the right of
survivorship. The deed was admitted into evidence. Sandra testified that
there were two chicken houses on the Windmill Road farm and two
chicken houses on the plaintiffs' farm. She stated that Thomas had
entered into his own contracts to sell chickens raised on their farm.
Sandra further testified that the plaintiffs did not start operating the
chicken houses on their farm until after Thomas was diagnosed with
leukemia in 2014. At that point, according to Sandra, the plaintiffs began
retaining all income from the poultry-farming operations.
Kenneth Gunnin, a family friend of the Penneys for about 30 years,
testified that he had known Thomas when he was a truck driver and that
Thomas had quit working as a truck driver shortly after the purchase of
the Windmill Road farm because of his failing health. He testified that
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Thomas had been limited in what he could do physically and that the
majority of the labor involved in the poultry-farming operations was
performed by the plaintiffs and their children. That labor, according to
Gunnin, was performed by the plaintiffs, "[f]rom day one, because it was
their chicken houses."
Regarding the poultry-farming operations, Shay testified that he
held "[a]ll responsibilities except for the paperwork," which, he said, was
Emily's responsibility. Shay testified that, when he signed the mortgage
relating to the Windmill Road farm, he believed that he and Emily would
be put on the deed to that farm. He further testified that he would not
have signed the mortgage if he thought otherwise. Shay stated that the
Penneys had agreed that he and Emily would oversee the poultry-farming
operations on the Windmill Road farm and on the plaintiffs' farm. He
testified that, "from day one," he was told by Thomas that the Windmill
Road farm would belong to him and Emily after Thomas died. When asked
what was currently being held as collateral to secure the loans the
Penneys had made with AFC, he replied: "Everything we own." Shay
stated that he and Emily had paid household bills for Sandra until she
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had moved off the Windmill Road farm. Shay further testified that
Sandra's only contribution to the poultry-farming operations was signing
the various loan documents.
Lugenia Penney, Sandra's daughter, testified that Sandra and
Thomas had paid their household bills and that Thomas had performed
the daily operations on the Windmill Road farm until he became ill in
2013. After 2013, she said, Shay and his son performed those operations.
Emily testified that she and Shay had primarily overseen the
poultry-farming operations on the Windmill Road farm since that farm
was purchased in 2003. Thomas, she said, assisted when his health
permitted. Emily stated that the Penneys had planned to run the adjacent
farms as essentially one poultry-farming business. She further testified
that she had believed she and Shay would be listed as co-owners on the
deed to the Windmill Road farm when they signed the mortgage relating
to that farm and that she did not realize they were not listed on the deed
until around 2017.
Emily testified that she and Shay had paid the utility bills for
Sandra's residence located on the Windmill Road farm starting around
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2013. Payment stubs from 2015, showing payments made by Emily for
utilities for the Windmill Road farm, were entered into evidence over
Sandra's objection. Sandra objected on the ground that some of those
payments included utilities expenses for the poultry-farming operations
conducted on the Windmill Road farm and that, since 2014, the plaintiffs
had been retaining all the proceeds from those operations. Emily admitted
in her testimony that, until 2013, contracts to sell chickens from the
Windmill Road farm had been in Thomas's name. She explained that that
had been done for income-reporting purposes. In 2013, she said, Thomas
sought to claim disability benefits, so all the contracts were then put in
Emily's name and the plaintiffs "absorb[ed] the income tax." Emily also
testified that, when the plaintiffs' house was destroyed by fire in 2017, the
plaintiffs' insurer paid them $320,000. Emily explained, however, that
$271,000 of the insurance proceeds were applied to debt associated with
the Windmill Road farm.
Emily testified regarding additional loans the Penneys obtained
from AFC, which were secured by mortgages on the Windmill Road farm,
the plaintiffs' farm, and a third farm that the plaintiffs had owned ("the
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Hebron Road farm"), which they sold in 2015. She stated that she and
Shay remain obligated on those loans. According to Emily, the money
received through those loans was used on upgrades to and maintenance
of the three farms. She testified that the farms operated as one large farm
and stated that chickens arrived at each farm at the same time and were
sold from each farm at the same time. During cross-examination, Emily
testified that she and Shay had been the direct recipients of proceeds
derived from poultry-farming operations conducted on the Windmill Road
farm and that they were also making all the payments related to the
Windmill Road farm and the plaintiffs' farm. She also testified that
Thomas had been unaware that she and Shay were not named on the deed
to the Windmill Road farm.
The trial court entered a judgment stating that the loan entered into
by the parties in 2002 was the first of a series of loans through AFC in a
joint venture among the plaintiffs, Sandra, and Thomas. The trial court
determined that the joint venture consisted of the poultry-farming
operations conducted on the three farms, until the Hebron Road farm was
sold in 2015. The trial court further determined that the Penneys had
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ultimately formed a general partnership in which the members shared in
the profits and losses. Sandra's contribution to the partnership was found
to be the $37,315.14 down payment the trial court determined she had
made on the Windmill Road farm. The trial court stated that a general
partnership was implied through the Penneys' actions and that Sandra
had communicated her intent to leave the partnership by moving off the
Windmill Road farm and expressing an intent to sell it. The trial court
gave the plaintiffs six months to buy Sandra's interest in the partnership,
which it concluded amounted to $37,315.14, at which point Sandra would
be required to deed the Windmill Road farm to the plaintiffs. In the
alternative, the trial court stated that the plaintiffs could dissolve the
partnership, sell the partnership assets, pay all the partnership debts, and
distribute any remaining proceeds to the partners according to their
contributions.
Standard of Review
This case was heard by the trial court without a jury, and the ore
tenus standard of review applies. "Under [the] ore tenus standard of
review, the trial court's findings carry a presumption of correctness which
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will not be disturbed on appeal unless palpably wrong, without supporting
evidence, or manifestly unjust." International Paper Co. v. Whilden, 469
So.2d 560, 564 (Ala. 1985).
Discussion
On appeal, Sandra argues that the trial court erred in holding that
the plaintiffs had proved that an implied general partnership existed.1
1As noted earlier, the trial court, before concluding that the Penneys
had formed an implied general partnership, found that the Penneys had
initially entered into a joint venture. Specifically, the trial court
determined that the 2002 loan was the first of a series of loans in a joint
venture among the Penneys. On appeal, Sandra argues that no joint
venture was proven to exist. Sandra points to the fact that, between 2003,
when the Windmill Road farm was purchased, and 2013, when Thomas
began receiving disability benefits, the parties held separate contracts for
the sale of chickens. Sandra further asserts that there was no sharing of
"joint profits" between the plaintiffs and Thomas or Sandra. Based upon
our review of the record, we conclude that the trial court's factual finding
that the Penneys entered into a joint venture in 2002 is supported by the
evidence. See Charles J. Arndt, Inc. v. City of Birmingham, 547 So. 397,
399-400 (Ala. 1989)(holding that "[w]hat constitutes a joint venture is a
question of law, but whether a joint venture exists has been held to be a
question of fact," and setting forth the elements necessary for the creation
of a joint venture). The trial court, however, made a subsequent
determination that the Penneys' relationship evolved from a joint venture
into an implied partnership. The trial court's conclusion that the Penneys
eventually formed a general partnership renders moot, for purposes of this
appeal, the trial court's determination that a joint venture existed at the
outset. Thus, we see no basis to reverse the trial court's determination
that, at one time, a joint venture existed.
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Sandra also asserts that the trial court erred when it treated the Windmill
Road farm as partnership property and when it calculated her
contribution to the partnership. Finally, Sandra argues that the judgment
was inequitable and contrary to the Alabama Partnership Law, §10A-8A-
1.01, et seq., Ala. Code 1975.2
I. Implied General Partnership
Sandra argues that the plaintiffs failed to prove the existence of an
implied general partnership. Sandra asserts that there was no implied or
express agreement among the Penneys to establish a partnership. She
further asserts that there was no sharing of the profits from the poultry-
farming operations within the meaning of § 10A-8A-2.01, Ala. Code 1975.
In its judgment, the trial court made findings that, beginning in 2002, the
Penneys had signed various loan documents, including the mortgage on
the Windmill Road farm, had entered into contracts to grow chickens for
2Effective January 1, 2019, approximately one month before the
plaintiffs filed their complaint, the legislature repealed the Alabama
Uniform Partnership Law, former § 10A-8-1.01, Ala. Code 1975, and
replaced it with the Alabama Partnership Law. We cite and quote from
the applicable provisions of the Alabama Partnership Law in this opinion,
but the corresponding provisions of the former Alabama Uniform
Partnership Law were substantially the same.
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Koch Farms, LLC, and had operated a poultry-farming business with the
intent to share in the profits and losses of the business. The trial court
concluded that the Penneys' intent to form a general partnership was
implied by those actions.
Formation of a partnership is governed by the provisions of § 10A-
8A-2.01. A partnership is formed by the association of two or more persons
"to carry on as co-owners of a business for profit ... whether or not the
persons intend to form a partnership." § 10A-8A-2.01(a)(1). Much of the
current law in Alabama governing business partnerships is originally
derived from the Alabama Partnership Act of 1971. Act No. 1513, Ala.
Acts 1971. Section 10A-8A-2.01(a)(1) closely tracks the language of § 6(1)
of Act No. 1513, except that the phrase "whether or not the persons
intend to form a partnership" is absent from § 6(1) of Act No. 1513.
This Court has stated that "[t]here is no arbitrary test as to whether
a partnership exists." McCrary v. Butler, 540 So. 2d 736, 739 (Ala. 1989)
(citing Adderhold v. Adderhold, 426 So. 2d 457 (Ala. Civ. App. 1983)).
Instead, this Court looks to all the attendant circumstances in
determining the existence of a partnership. Id. "A partnership arises only
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from an express or implied agreement among the parties and is never
established by implication or by operation of law." Id. Indicia of the
existence of a partnership can include intent and agreement to be
partners, sharing of profits and losses, sharing management and
community of interest, as well as other surrounding circumstances. See
Adderhold, 426 So. 2d at 460.
Section 10A-8A-2.01(c)(3) states that "[a] person who receives a
share of the profits of a business is presumed to be a partner in the
business" but this presumption does not apply when profits are received
in payment of, among other things, a debt, rent, or interest or other
charge on a loan.
In Adderhold, supra, a case concerning the existence of an implied
partnership, the Court of Civil Appeals explained:
"Where there is no written agreement between the parties,
and the question is whether as between the two a partnership
existed, the question is one of part law and part fact. Bailey v.
Bailey, 345 So. 2d 304 (Ala. Civ. App. 1977). Where there is a
conflict of evidence, the ore tenus rule applies in partnership
cases as in all others. Bailey v. Bailey, supra. On appeal, the
circuit court's judgment can only be disturbed if it is so
unsupported by the evidence as to be clearly unjust and
palpably wrong. Coffelt v. Coffelt, 390 So. 2d 652 (Ala. Civ.
App. 1980)."
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426 So. 2d at 458. Ore tenus evidence regarding the existence of a
partnership was presented at trial. This Court therefore presumes that
the trial court's judgment is correct and will reverse the judgment "only
if, after consideration of the evidence and all reasonable inferences to be
drawn therefrom, the judgment is found to be plainly and palpably
wrong." Robinson v. Hamilton, 496 So. 2d 8, 10 (Ala. 1986). Furthermore,
the trial court is in a better position than this Court to make credibility
determinations and to consider all the evidence. See Ex parte Patronas,
693 So.2d 473, 475 (Ala. 1997). It is not for this Court to reweigh the
evidence. Id.
At trial, evidence was presented demonstrating that the Penneys
had agreed to conduct a poultry-farming business for profit. Both plaintiffs
testified that, around the time the Windmill Road farm was purchased,
the Penneys orally agreed to operate a poultry-farming business together.
Both plaintiffs also testified that they signed the mortgage on the
Windmill Road farm believing that their names would be on the deed to
that property and that they would not have done so if they had believed
otherwise. Shay testified that he had had an agreement with Thomas to
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"take care of everything" relating to the poultry-farming operations on the
Windmill Road farm. In return, Shay explained, that farm would become
his and Emily's upon Thomas's death so that they could continue
operating the poultry-farming business. Shay also testified that the
Windmill Road farm and the plaintiffs' farm were run as one large farm.
Emily testified that it was her understanding that there was an
agreement with Thomas and Sandra that they would all conduct the
poultry-farming operations together, with her and Shay as the primary
managers of the operation. She also claimed that she and Shay were not
aware that they were not named on the deed to the Windmill Road farm
until around 2017. Emily testified that the Penneys' plan was to combine
the two adjacent farms. She explained in her testimony that, before 2013,
separate poultry-sale contracts existed for each farm for tax purposes. The
trial court apparently found the plaintiffs' testimony to be credible,
although it conflicted with the Sandra's testimony. As noted earlier,
because the trial court was in a better position to evaluate the witnesses'
credibility, this Court will not disturb its determination. See Ex parte
Patronas, 693 So. 2d at 475.
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The circumstances surrounding the Penneys' relationship also
support the trial court's finding of the existence of an implied general
partnership. The testimony of Greg Copeland, Kenneth Gunnin, and the
plaintiffs indicated that, after acquiring the farms, the poultry-farming
operations on the farms, including performing labor and administrative
duties and negotiating contracts, were primarily overseen by the
plaintiffs. Copeland testified that he dealt primarily with Emily regarding
the AFC loans associated with the Windmill Road farm. Gunnin, a family
friend, testified that the plaintiffs had worked on the Windmill Road farm
"[f]rom day one." In further testimony, Gunnin indicated that he had
understood that the chicken houses on the Windmill Road farm belonged
to the Penneys jointly. This Court has previously indicated that testimony
indicating that parties are perceived to be in a partnership can constitute
evidence of "surrounding circumstances" indicating the existence of an
implied partnership. See Adderhold, 426 So. 2d at 460.
The evidence in the record also supports the finding that the
Penneys shared in losses resulting from the poultry-farming operations.
Testimony and other evidence revealed that the documents evidencing
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and securing the 2002 loan were signed by all four individuals. Documents
evidencing and securing additional loans, including the mortgage on the
Windmill Road farm used to secure funding for upgrades and maintenance
of the farms, were also signed by all four. Because each individual signed
the pertinent loan documents, they were each liable for the debts.
Moreover, the loans were secured not just by the Windmill Road farm but
also by property deeded to Shay and Emily. As Copeland testified, "from
a security standpoint," the Penneys were "tied together." In fact,
insurance proceeds from the plaintiffs' burned-down house were applied
to debts secured by the Windmill Road farm, according to lien priority.
Failure to continue making payments on the loans could have resulted in
foreclosures on both the Windmill Road farm and the plaintiffs' farm.
Copeland testified that the money owed to AFC was paid directly from the
proceeds derived from the poultry-farming operations. Consequently, the
evidence indicated that losses from the poultry-farming operations would
have been shared by all.
Additionally, evidence in the record supports the finding that Sandra
shared in the profits derived from the poultry-farming operations. Her
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residence on the Windmill Road farm was paid for through the proceeds
derived from the poultry-farming operations. And, although Sandra
disputed such evidence, testimony and pay stubs revealed that the
plaintiffs had paid many of the ordinary bills associated with Sandra's
residence, at least from 2013 on. The sharing of profits, alone, creates a
presumption that the Penneys were part of a partnership. § 10A-8A-2.01.
Sandra argues that any payment she received from the poultry-
farming operations did not make her a partner because such payments fell
under one of the exceptions listed in § 10A-8A-2.01(c)(3)(i)-(vi).
Specifically, she asserts that, because proceeds from the poultry-farming
operations were used to pay the mortgage on the Windmill Road farm, any
payment of such proceeds should be considered the payment of a "debt."
Sandra appears to misinterpret § 10A-8A-2.01(c)(3)(i). The "debt"
exception refers to use of profits to make debt payments in a lender-
borrower relationship when the lender and the borrower are alleged to be
in a partnership together. Sandra, however, is not in a lender-borrower
relationship with the plaintiffs. Instead, Sandra and the plaintiffs are co-
borrowers, each obligated to pay the lender, AFC, for shared business
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loans. AFC is not alleged to be a partner in the poultry-farming business.
Proceeds from the poultry-farming operations were received by Sandra,
which were then used to pay off loans from AFC. As between Sandra and
the plaintiffs, the debt exception is irrelevant.
Sandra also argues that any proceeds from the poultry-farming
operations used to pay off the mortgage on the Windmill Road farm should
be excluded under the "rent" exception. See § 10A-8A-2.01(c)(3)(iii). She
appears to contend that the payments she received from the poultry-
farming operations could be characterized as rent due to her from the
plaintiffs for their use of the Windmill Road farm. This argument is also
unpersuasive. The trial court, aided by sufficient testimony and evidence
in the record, found that the plaintiffs' use of the Windmill Road farm was
for the purpose of operating the poultry-farming business. The evidence
supports the conclusion that such use of the Windmill Road farm was
necessary to the success of the poultry-farming business, from which
Sandra and plaintiffs both benefited by being able to maintain their loan
payments. Sandra points to nothing in the record to indicate that a rental
agreement between herself and the plaintiffs existed and that she was
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acting as a landlord by allowing the plaintiffs to use the Windmill Road
farm for the poultry-farming operations.
Finally, Sandra asserts that any proceeds she received from the
poultry-farming operations should not give rise to the presumption of a
partnership because they were payments intended to "increase the value
derived from loan collateral." See § 10A-8A-2.01(c)(3)(v). Sandra does not
expand upon this assertion in her appellate brief, and the relevance of this
provision to the facts of this case is unclear. Therefore, we will not address
this argument further. See Rule 28, Ala. R. App. P.
There is sufficient evidence in the record to support the trial court's
finding that an implied general partnership existed. Specifically, the
record contains evidence of an agreement to operate in a partnership, the
sharing of profits and losses, and other surrounding circumstances
indicative of a partnership. Although some of that evidence was disputed
by Sandra, the trial court was in a better position than this Court to
determine the credibility of the witnesses. We hold that the trial court's
judgment, insofar as it determined that a partnership did in fact exist,
was not "plainly and palpably wrong." Robinson, 496 So. 2d at 10.
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II. Partnership Property
Sandra next argues that, even if there was an implied general
partnership, the trial court erred in treating the Windmill Road farm as
partnership property. Sandra notes that she and Thomas were the sole
contributors to the down payment, are the only individuals named on the
deed, and that she holds the right of survivorship. She further asserts that
mere use by a partnership of property does not make it partnership
property.
The trial court found that the Windmill Road farm was partnership
property that was originally shared by the Penneys. The plaintiffs argue
that this finding is correct because the purchase of the Windmill Road
farm was financed using the credit of all four, subsequent loans to the four
were used to repair and upgrade the farm, and the plaintiffs had regularly
worked the farm. In addition, the plaintiffs point out that, after their
residence burned down, the resulting insurance proceeds were used to pay
the balance owed on the Windmill Road farm rather than to rebuild their
residence.
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Section 10A-8A-2.04 states that "[p]roperty acquired by a partnership
is property of the partnership and not of the partners individually." Section
10A-8A-2.05 elaborates on when property is to be considered partnership
property rather than property owned by an individual partner. Of
relevance here, § 10A-8A-2.05(c) provides:
"Property is presumed to be partnership property if purchased
with partnership assets, even if not acquired in the name of the
partnership or of one or more partners with an indication in the
instrument transferring title to the property of the person's
capacity as a partner or of the existence of a partnership."
This Court has noted that, "generally, in order to make land partnership
property its acquisition must have been with partnership funds or on
partnership credit for the uses of the partnership." Cooper v. Cooper, 289
Ala. 263, 270-71, 266 So. 2d 871, 878-79 (1972). Although the purchase of
property with partnership assets creates the presumption that the
property belongs to the partnership, the mere use of partnership assets to
purchase the property, alone, does not make the property partnership
property. See, e.g., Reed v. Crow, 496 So. 2d 15, 17-18 (Ala. 1986).
Resolving whether property belongs to an individual or a partnership that
the individual is a member of depends upon the intention of the parties at
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the time the property was purchased. Id. The intention of the parties is a
question of fact and is determined by the circumstances attending the
transaction. See Strother v. Strother, 436 So. 2d 847, 849-850 (Ala. 1983).
Evidence of the parties' intention can come in the form of testimony. See
Cooper, 289 Ala. at 271, 266 So. 2d at 879.
Additionally, the fact that title to property is in the name of an
individual, and not the partnership, does not preclude the property from
being treated as partnership property. See Norman v. Bozeman, 605 So. 2d
1210, 1213 (Ala. 1992). If, in viewing the surrounding circumstances of the
transaction, it appears to be the intention of the parties that the property
was purchased for and treated as partnership property, then " 'that
presumption of ownership arising from the face of the deed will be
overcome, and the property will be treated as belonging to the
partnership.' " Strother, 436 So. 2d at 849 (quoting Goldthwaite v. Janney,
102 Ala. 431, 438, 15 So. 560, 562 (1894)).
In briefing this issue, Sandra relies principally upon this Court's
decision in Strother, supra, to assert that the plaintiffs have no interest in
the Windmill Road farm as members of a partnership. In Strother, a
27
1200086
mother asserted that she was entitled to a portion of certain lands. The
deeds to the lands all named the mother's three sons, either as individuals
or as members of a partnership, as grantees. None of the deeds named the
mother as a grantee. In affirming the trial court's judgment denying the
mother's request to establish a constructive trust in her favor as to a
portion of the lands, this Court held that the mother was not entitled to
any interest in the lands. Id. at 850. The Court explained that "no detailed
factual presentation was made to support the contention that [the mother]
was an equal partner with her sons and that the land was partnership
property bought with partnership funds or on partnership credit." Id. at
849-50.
In contrast to Strother, the plaintiffs in this case offered extensive
evidence to support their contention that they had contributed to the
acquisition of the Windmill Road farm. The plaintiffs do not deny that
Sandra and Thomas alone made the down payment on the Windmill Road
farm. It is undisputed, however, that all four individuals signed the loan
documents, including the mortgage on the Windmill Road farm, making
each one liable for the debt secured by that farm. The testimony of several
28
1200086
witnesses regarding the mortgage was corroborated by the terms of the
mortgage. Thus, the evidence supported the finding that the credit of all
four was used to obtain the Windmill Road farm.
In addition, testimony by multiple witnesses, including disinterested
witnesses, indicated that the plaintiffs routinely had worked on the
Windmill Road farm in connection with the poultry-farming operations.
Use of partnership credit to obtain property that is then used for
partnership purposes creates the presumption that the property belongs
to the partnership -- not the individual partners. § 10A-8A-2.05(c); see also
Cooper, 289 Ala. at 270-71, 266 So. 2d at 878-79.
That presumption can be overcome when the surrounding
circumstances show that it was not the intention of the parties to make the
property that of the partnership. See Reed, 496 So. 2d at 17-18. The trial
court heard testimony regarding the intentions of the Penneys when the
Windmill Road farm was purchased. Specifically, the plaintiffs each
testified that he or she believed that, after signing the mortgage, their
names were to be placed on the deed to the Windmill Road farm.
29
1200086
There was ample evidence on which the trial court could have relied
to determine that the Penneys had intended that the Windmill Road farm
be partnership property. Under the ore tenus standard of review, this
Court will not disturb the trial court's findings unless they are palpably
wrong, without supporting evidence, or manifestly unjust. Applying that
standard, this Court holds that there is no basis for reversing the trial
court's conclusion that the Windmill Road farm was partnership property.
In the alternative, Sandra asserts that, if the Windmill Road farm is
in fact partnership property, she retains widow's rights to claim a one-
third elective share of Thomas's estate, which, she asserts, includes his
interest in the Windmill Road farm. She asserts this right under § 43-8-
70(a), Ala. Code 1975, which gives a surviving spouse the right of election
to take the lesser of either "[a]ll of the estate of the deceased reduced by
the value of the surviving spouse's separate estate" or "[o]ne-third of the
estate of the deceased."
Section 10A-8A-2.04, Ala. Code 1975, states that "[p]roperty acquired
by a partnership is property of the partnership and not of the partners
individually." Therefore, Sandra's elective-share rights apply only to
30
1200086
property owned exclusively by Thomas, not to the Windmill Road farm
which belongs to the partnership. See Peden v. Peden, 972 So. 2d 102 (Ala.
Civ. App. 2007)(concluding that a former husband had no individual
interest in property owned by his partnership). This conclusion is further
supported by the Alabama Comment to § 10A-8A-2.04, which explicitly
provides that "[t]he ... rights of a partner's spouse ... inure to the property
of the partners, and not to partnership property, as no ... partner's spouse
... [has] any right to the property of the partnership itself." Thus, Sandra's
claim to an elective share of Thomas's estate does not include a right to
share in the ownership of the Windmill Road farm.
III. Partner Contribution
Sandra argues that the trial court's calculation of her contribution to
the partnership is plainly and palpably wrong. The trial court declared
that Sandra's interest in the partnership was $37,315.14, an amount
equivalent to the down payment on the Windmill Road farm. Sandra puts
forth a number of arguments as to why her contribution to the partnership
was in fact greater than $37,315.14., including that her credit was used to
help secure loans that benefited the partnership, that she remains liable
31
1200086
on those loans, that the property has appreciated since she made the down
payment, and that Thomas performed poultry-farming work until 2013.
To comply with Rule 28, Ala. R. App. P., an appellant is required to
cite supporting authority. Reciting a mere general proposition of law is not
sufficient to comply with Rule 28. See Unger v. Wal-Mart Stores East, L.P.
279 So. 3d 546, 552 (Ala. 2018); see also S.B. v. Saint James Sch., 959 So.
2d 72, 89 (Ala. 2006)("It is well established that general propositions of law
are not considered 'supporting authority' for purposes of Rule 28.").
"Further, it is well settled that ' "[w]here an appellant fails to cite any
authority for an argument, this Court may affirm the judgment as to those
issues ...." ' " Id. (quoting Spradlin v. Birmingham Airport Auth., 613 So.
2d 347, 348 (Ala. 1993), quoting in turn Sea Calm Shipping Co., S.A. v.
Cooks, 565 So. 2d 212, 216 (Ala. 1990).
In support of this contention, Sandra cites only to this Court's
decision in Deloney v. Chappell, 570 So. 2d 622 (Ala. 1990). Relying on
Deloney, Sandra asserts the general proposition that "[a]n order
purporting to dissolve a partnership must be fair." She fails to cite
32
1200086
authority applicable to her specific arguments. This argument is therefore
waived.
IV. Conformity With the Alabama Partnership Law
Sandra last argues that the trial court's judgment was inequitable
and contrary to the Alabama Partnership Law. See note 2, supra. She
asserts, again, that her calculated partnership interest of $37,315.14 is
inadequate considering the overall value of the Windmill Road farm.
Sandra also notes that the trial court's judgment does not require the
plaintiffs to hold Sandra harmless from payment of debts secured by the
Windmill Road farm after the deed to that property is transferred to them.
Sandra contends that her partnership share must be determined and paid
pursuant to § 10A-8A-7.01, which she says entitles her to the fair value of
her interest in the partnership at the date of her dissociation. In addition
to additional payment, she asserts that she is entitled to a statement of
partnership assets and liabilities, the latest available partnership balance
sheet and income statement, an explanation of how the amount of any
payment to her is calculated, and written notice that any payment to her
is in full satisfaction of her partnership interest.
33
1200086
Aside from her reference to § 10A-8A-7.01, Sandra again fails to cite
supporting authority for her contentions. It is not clear why she believes
the cited statute applies here, and her briefing of this issue does not
comply with Rule 28(a)(10), Ala. R. App. P. (requiring an appellant to
support an argument on appeal with appropriate citations to legal
authority).
Regarding her assertion involving § 10A-8A-7.01, Sandra appears to
be claiming the benefit of § 10A-8A-7.01(g). That subsection however,
refers only to payments made in accordance with § 10A-8A-7.01(e) and §
10A-8A-7.01(f). Neither of those subsections apply in this case. Section
10A-8A-7.01(e) applies when a dissociated partner makes a written
demand for payment. No such demand can be found in the record. § 10A-
8A-7.01(f) is applicable only when a partner is wrongfully dissociated and
a deferred payment is authorized. The trial court's judgment, however,
states that Sandra left the partnership voluntarily when she moved from
the Windmill Road farm with the intention of selling it. Moreover, she
makes no claims that she was wrongfully dissociated.
Conclusion
34
1200086
Based on the foregoing, the trial court's judgment is affirmed.
AFFIRMED.
Parker, C.J., concurs.
Bolin, Wise, and Sellers, JJ., concur in the result.
35 | August 27, 2021 |
12462ecc-96f4-49bb-b3b3-a35208020ed9 | Ex parte Steven R. Davis. | N/A | 1200628 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200628
Ex parte Steven R. Davis. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Steven R. Davis v. James R. Morgan)
(Jefferson Circuit Court: CV-19-900990 and CV-19-900991; Civil Appeals :
2200124).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
c1cd4a32-096e-4c11-ad25-1f2be98eca24 | Alcantara-Angeles v. Birmingham Water Works Board | N/A | 1200159 | Alabama | Alabama Supreme Court | Rel: August 13, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200159
_________________________
Ciro Alcantara-Angeles
v.
Birmingham Water Works Board
Appeal from Jefferson Circuit Court
(CV-20-902687)
BRYAN, Justice.
Ciro Alcantara-Angeles appeals from a judgment of the Jefferson
Circuit Court ("the circuit court") dismissing a complaint he filed against
the Birmingham Water Works Board ("the Board"). We reverse and
remand.
1200159
Background
In July 2020, Alcantara-Angeles filed in the circuit court a
"complaint for declaratory judgment and motion to compel" against the
Board. In relevant part, Alcantara-Angeles alleged that, in June 2019, he
visited the Board's office to inquire about having water service installed
at a parcel of real property he owns. According to Alcantara-Angeles, he
paid a deposit of $375 to have water service connected to his property. He
alleged that the Board gave him a quote of $1,739, in addition to his
deposit, to have water service connected, which he said he attempted to
pay. However, according to Alcantara-Angeles, he was instructed to wait
for a letter from the Board before making payment. Alcantara-Angeles
further alleged that the Board gave him a new quote of $15,025 in July
2019, stating that the pipeline system supplying Alcantara-Angeles's
parcel and the adjacent parcel was corroded and needed to be replaced at
his expense.
Alcantara-Angeles's complaint alleged that the Board had failed to
properly maintain the pipeline system at issue, which he contended was
located on city property. He requested a judgment declaring that he was
2
1200159
required to pay only the additional $1,739, as allegedly originally quoted
by the Board, to have water service connected to his parcel and that the
Board was obligated to bear the cost of replacing the corroded pipelines to
establish the water service. Alcantara-Angeles further requested an order
directing the Board to begin work on the pipeline system to make the
necessary repairs. Alcantara-Angeles attached several exhibits to his
complaint. See Rule 10(c), Ala. R. Civ. P. ("A copy of any written
instrument which is an exhibit to a pleading is a part thereof for all
purposes.").
The Board filed a motion to dismiss Alcantara-Angeles's complaint
pursuant to, it said, Rule 12(b)(6), Ala. R. Civ. P. In its motion, the Board
argued that Alcantara-Angeles's complaint failed to adequately allege a
justiciable controversy and that Alcantara-Angeles's complaint failed to
adequately allege a
"legal relationship with the parties to establish any obligation
by this Honorable Court to decide a legal issue as set out in ...
§ 6-6-223[, Ala. Code 1975.1] ... [Alcantara-Angeles] has not
1Section 6-6-223 provides:
3
1200159
entered into a contract with the [Board] and is not alleging
that the policy and procedure established by the [Board] is an
ordinance or a statute set out by a Municipality or the State."
Thus, the Board argued that the circuit court lacked jurisdiction because,
it said, there is no justiciable controversy and that the circuit court lacked
"jurisdiction to hear this case for the failure to state a claim in this
matter."
With the circuit court's permission, Alcantara-Angeles thereafter
filed an amended complaint. Among other things, the amended complaint
added allegations that the Board had a regulatory and statutory duty to
maintain the pipeline system at issue and that the Board had breached
that duty by permitting the pipelines to corrode and become unusable.
Alcantara-Angeles attached several exhibits to his amended complaint,
"Any person interested under a deed, will, written
contract, or other writings constituting a contract or whose
rights, status, or other legal relations are affected by a statute,
municipal ordinance, contract, or franchise may have
determined any question of construction or validity arising
under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other
legal relations thereunder."
4
1200159
one of which was the document containing the $15,025 quote the Board
had sent to him.
The Board filed an amended motion to dismiss the amended
complaint, adding to its original arguments an argument that the
document containing the $15,025 quote was not a contract because
Alcantara-Angeles had not signed the document under a section labeled
therein as "Acceptance." Had Alcantara-Angeles signed the document, the
Board argued, it "would have been the document for the court to make a
declaratory judgment about the parties' rights."
Alcantara-Angeles thereafter filed a written response to the Board's
amended motion to dismiss, arguing, among other things, that he "does
not need to rely on [§] 6-6-223 as a basis for this declaratory[-]judgment
action." Alcantara-Angeles argued that his action could properly proceed
under § 6-6-222, Ala. Code 1975. Alcantara-Angeles also included
additional discussion and citations to authority in support of his argument
that the Board had breached a duty to maintain the pipeline system at
issue; he argued that the duty was imposed by statute, caselaw, and
5
1200159
regulatory rules. Alcantara-Angeles also argued that the Board had
breached a contractual duty owed to him by virtue of the Board's conduct.
After conducting a hearing, the circuit court entered an order on
October 28, 2020, granting the Board's amended motion to dismiss,
without specifying the reason for its decision. Alcantara-Angeles
appealed.
Standard of Review
" 'A ruling on a motion to dismiss is reviewed
without a presumption of correctness. Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993). This
Court must accept the allegations of the complaint
as true. Creola Land Dev., Inc. v. Bentbrooke
Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
We must also view the allegations of the complaint
most strongly in the pleader's favor to determine
whether it appears the pleader could prove any set
of circumstances that would entitle the pleader [to]
relief. Nance, 622 So. 2d at 299. Furthermore, we
will not consider whether the pleader will
ultimately prevail on the complaint but whether
the pleader may possibly prevail. Id.
" 'For a declaratory-judgment action to
withstand a motion to dismiss there must be a
bona fide justiciable controversy that should be
settled. Anonymous v. Anonymous, 472 So. 2d 640,
641 (Ala. Civ. App. 1984); Smith v. Alabama Dry
Dock & Shipbuilding Co., 293 Ala. 644, 309 So. 2d
6
1200159
424, 427 (1975). The test for the sufficiency of a
complaint seeking a declaratory judgment is
whether the pleader is entitled to a declaration of
rights at all, not whether the pleader will prevail in
the declaratory-judgment action. Anonymous, 472
So. 2d at 641.
" 'The lack of a justiciable controversy may be
raised by either a motion to dismiss or a motion for
a summary judgment. Smith, [293 Ala. at 649,]
309 So. 2d at 427. See also Rule 12, Ala. R. Civ. P.;
Rule 56, Ala. R. Civ. P. However, a motion to
dismiss
is
rarely
appropriate
in
a
declaratory-judgment action. Wallace v. Burleson,
361 So. 2d 554, 555 (Ala. 1978). If there is a
justiciable controversy at the commencement of the
declaratory-judgment action, the motion to dismiss
should be overruled and a declaration of rights
made only after an answer has been submitted and
evidence has been presented. Anonymous, 472 So.
2d at 641. However, if there is not a justiciable
controversy, a motion to dismiss for failure to state
a claim should be granted. Curjel v. Ash, 263 Ala.
585, 83 So. 2d 293, 296 (1955).'
"Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220,
223 (Ala. 2003)."
Muhammad v. Ford, 986 So. 2d 1158, 1161-62 (Ala. 2007)(emphasis
added).
Analysis
7
1200159
On appeal, Alcantara-Angeles argues that the circuit court had
authority to consider his complaint under at least one of two possible
statutes found in the Declaratory Judgments Act, codified at §§ 6-6-220
through -232, Ala. Code 1975. Specifically, Alcantara-Angeles argues
that his action can proceed under § 6-6-222 or, alternatively, under § 6-6-
223.
Sections 6-6-223 through 6-6-225, Ala. Code 1975, list specific types
of issues that are proper subjects of a declaratory-judgment action.
Alcantara-Angeles points out, however, that § 6-6-226, Ala. Code 1975,
provides that the specific issues listed in §§ 6-6-223 through 6-6-225 are
not the only types of issues that can be properly resolved via a
declaratory-judgment action.2 Specifically, § 6-6-226 states: "The
enumeration in Sections 6-6-223, 6-6-224, and 6-6-225 does not limit or
restrict the exercise of the general powers conferred in Section 6-6-222 in
2In his principal appellate brief, Alcantara-Angeles actually cites §
6-6-229, Ala. Code 1975, but quotes the pertinent language from § 6-6-226.
In his reply brief, he clarifies that he intended to cite § 6-6-226 in his
principal appellate brief but mistakenly cited § 6-6-229.
8
1200159
any proceeding where declaratory relief is sought in which a judgment will
terminate the controversy or remove an uncertainty."
Therefore, Alcantara-Angeles first argues that his action against the
Board may proceed under § 6-6-222, even if the issues he raises do not fall
within one of the categories explicitly listed in §§ 6-6-223 through 6-6-225.
Section 6-6-222 is entitled "Power of courts of record; form and effect of
declarations" and provides:
"Courts of record, within their respective jurisdictions,
shall have power to declare rights, status, and other legal
relations whether or not further relief is or could be claimed.
No action or proceeding shall be open to objection on the
ground that a declaratory judgment is requested. The
declaration may be either affirmative or negative in form and
effect, and such declarations shall have the force and effect of
a final judgment."
In MacKenzie v. First Alabama Bank, 598 So. 2d 1367, 1370 (Ala.
1992), this Court stated:
"Section 6-6-221[, Ala. Code 1975,] includes the legislature's
statements that the declaratory judgment article is intended
to 'afford relief from uncertainty and insecurity' and that the
article should be construed to that end so long as such a
construction is consistent with other state law and federal law.
Section 6-6-222 also authorizes the circuit court to 'declare
rights, status and other legal relations.' 'All that is required
for a declaratory judgment action is a bona fide justiciable
9
1200159
controversy.' Gulf South Conference v. Boyd, 369 So. 2d 553,
557 (Ala.1979) (citation omitted).
" 'To be justiciable, the controversy must be
one that is appropriate for judicial determination.
It must be a controversy which is definite and
concrete, touching the legal relations of the parties
in adverse legal interest, and it must be a real and
substantial controversy admitting of specific relief
through a decree. "A controversy is justiciable
when there are interested parties asserting adverse
claims upon a state of facts which must have
accrued wherein a legal decision is sought or
demanded." Anderson, Actions for Declaratory
Judgments, Volume 1, § 14.'
"Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So. 2d
385, 387 (1969)."
According to the allegations in Alcantara-Angeles's amended
complaint, the Board has informed him that the pipeline system necessary
to establish a water-service connection to his parcel of real property is
corroded and has become unusable. To provide water service to
Alcantara-Angeles's property, the pipeline system has to be repaired, and,
according to the quote provided by the Board, the necessary repairs will
cost $15,025, less the $375 Alcantara-Angeles has already paid as a
deposit.
10
1200159
Alcantara-Angeles has further alleged that it is the Board's position
that he is financially responsible for funding the necessary repairs to the
pipeline system if he wishes to have the Board connect water service to his
property. Alcantara-Angeles has taken the position that the Board has a
legal duty to make the necessary repairs and that he is financially
responsible for only $1,739, in addition to the $375 deposit he already
paid, which represents the amount allegedly originally quoted by the
Board to establish a water-service connection to Alcantara-Angeles's
property. Alcantara-Angeles cites decisions of this Court and a statute
that he says impose upon the Board the duty he describes. He also argues
that he and the Board entered into a contract and that the Board breached
that contract.
We express no opinion regarding the propriety of Alcantara-
Angeles's contention that the Board has a duty to repair or maintain the
pipeline system at issue or whether the Board has breached a contract
with Alcantara-Angeles. At this stage in the proceedings, the question
before us is " 'not whether [Alcantara-Angeles] will prevail in the
declaratory-judgment action.' " Muhammad, 986 So. 2d at 1161. The only
11
1200159
question at this time is whether Alcantara-Angeles is " 'entitled to a
declaration of rights at all.' " Id. On that point, " '[a]ll that is required for
a declaratory judgment action is a bona fide justiciable controversy.' "
MacKenzie, 598 So. 2d at 1370.
Based on Alcantara-Angeles's amended complaint, it is clear that he
has alleged the existence of a controversy that is " 'definite and concrete,
touching the legal relations of the parties in adverse legal interest, and
[that it is] a real and substantial controversy admitting of specific relief
through a decree.' " MacKenzie, 598 So. 2d at 1370. Specifically,
Alcantara-Angeles has alleged that he has asked the Board to connect
water service to his property, that the Board has refused to do so without
his agreement to finance the required repairs to the essential pipeline
system, and that Alcantara-Angeles has taken the adverse position that
the Board is under a legal duty to make the necessary repairs to the
pipeline system near his property without his financial contribution, apart
from the cost of connecting the ultimately repaired pipeline system to his
property. Further, Alcantara-Angeles's amended complaint contends that
12
1200159
the circuit court could resolve the controversy by providing the following
relief:
"WHEREFORE, [Alcantara-Angeles] brings this action
against the [Board] and prays that this Honorable Court
provide general relief to [Alcantara-Angeles] and/or compel
[the Board] to make repairs, at its own cost and restore the
water system in order that [Alcantara-Angeles] may connect
and begin water service.
"WHEREFORE, [Alcantara-Angeles] prays that this
Honorable Court compels [the Board] to begin work to
complete the pipe work and other repairs, beneath city
property in such a way that would facilitate [Alcantara-
Angeles's] ability to connect to the city water system."
Thus, it is clear that Alcantara-Angeles's complaint has satisfied the
elements necessary to adequately allege a bona fide justiciable controversy
under § 6-6-222. See MacKenzie, 598 So. 2d at 1370. Therefore, the
circuit court had the authority to consider his complaint.
Conclusion
In light of the foregoing, the circuit court's judgment is due to be
reversed, and the cause is remanded for further proceedings. Because the
circuit court had the authority to consider Alcantara-Angeles's complaint
under § 6-6-222, we need not specifically decide, as a separate issue,
13
1200159
whether Alcantara-Angeles's allegations fall within one of the particular
categories listed in § 6-6-223, and we express no opinion concerning that
issue. See § 6-6-226. Moreover, we emphasize that nothing in our
decision should be construed as expressing an opinion regarding the legal
merits of Alcantara-Angeles's position against the Board. We conclude
only that he has adequately alleged a justiciable controversy that the
circuit court has authority to consider in a declaratory-judgment action.
REVERSED AND REMANDED.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur.
14 | August 13, 2021 |
59bda36e-7fb7-4586-b1c2-79b0e4bdb665 | Monty Wayne Ervin v. Patricia Darlene Ervin et al. | N/A | 1190924 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1190924 Monty Wayne Ervin v. Patricia Darlene Ervin et al. (Appeal
from Houston Circuit Court: CV-13-900142).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on August 13, 2021:
Application Overruled. No Opinion. Bryan, J. -
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on June 11, 2021:
Affirmed. No Opinion. Bryan, J. - Parker, C.J., and Bolin, Stewart, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
5a8b06fa-7c8b-4e80-a3a6-3d1cb8a2f7b8 | Ex parte John Michael Woodruff. | N/A | 1200397 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200397
Ex parte John Michael Woodruff. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: John Michael Woodruff v.
City of Alabaster and State of Alabama) (Shelby Circuit Court: CC-18-233;
CC-18-354; CC-18-355; Criminal Appeals : CR-19-0504).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
d2b6324a-2efd-4f03-8831-eefd5c21a723 | Ex parte P.J.E.S. | N/A | 1200630 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200630
Ex parte P.J.E.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: P.J.E.S. v. DeKalb County Department of
Human Resources) (DeKalb Juvenile Court: JU-19-23.02; Civil Appeals :
2200010).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
520c8651-1982-4b9f-ba12-df172822ccb1 | Childs et al. v. Pommer | N/A | 1190525, 1190580 | Alabama | Alabama Supreme Court | Rel: September 03, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1190525
_________________________
Paul Childs and Granger Construction Company, LLC
v.
Harry J. Pommer and Brenda S. Pommer
_________________________
1190580
_________________________
Harry J. Pommer and Brenda S. Pommer
v.
Melissa T. Granger, as administratrix of the Estate of Daniel D.
Granger, deceased
Appeals from Baldwin Circuit Court
(CV-16-900017)
WISE, Justice.
In case number 1190525, two of the defendants below, Paul Childs
and Granger Construction Company, LLC ("Granger Construction"),
appeal from a judgment the Baldwin Circuit Court entered in favor of the
plaintiffs below, Harry J. Pommer ("Bud") and Brenda S. Pommer. In
their cross-appeal, case number 1190580, the Pommers appeal from the
trial court's judgment entered in favor of another of the defendants below,
Melissa T. Granger ("Melissa"), as the administratrix of the estate of
Daniel D. Granger ("Granger"), deceased.
Facts and Procedural History
In 2014, the Pommers decided to build a garage on property that
they owned in Fairhope. Bud testified that he initially contacted a
contractor he knew about building the garage, that that contractor did not
do that type of work, and that that contractor recommended Childs to
2
1190525 and 1190580
him. Bud testified that he telephoned Childs, that he told Childs that he
and Brenda wanted to build a garage in front of their house, that he asked
Childs if he was interested in doing the job and if he could do it, and that
Childs said that he could.
The Pommers subsequently met with Childs at their house. Bud
testified that his initial concern was whether they could build a garage in
front of the house. Bud testified that Childs said that he would contact
the proper authorities with the City of Fairhope ("the City") to find out
and then get back with them. Bud testified that, after that initial
meeting, Childs did some work for them regarding the design of the
garage. Initially, after checking with the City, Childs told the Pommers
that the garage could be built in front of their house. Childs worked on
some sketches and ultimately came up with a computer generated-
drawing of the garage. Childs gave the Pommers invoices dated July 2014
and September 29, 2014. Childs's name was on the top of both invoices.
The first invoice was for "Preliminary Design Work for Garage Addition,"
and the second invoice was for "Secondary Design Work for Garage
3
1190525 and 1190580
Addition." The Pommers paid both invoices by checks made payable to
Childs.
Childs subsequently gave the Pommers an estimate dated October
14, 2014, for constructing a garage in front of their house. Evidence was
presented indicating that Childs took some sketches of the garage to the
City for approval. However, the City informed Childs that a garage could
not be built in front of the Pommers' house unless it was attached to the
house. Because the Pommers were using their existing garage for other
purposes, they still needed another garage. Therefore, they continued to
work with Childs to come up with a new location and a new design for the
garage.
Evidence was presented indicating that Childs subsequently
prepared a set of plans for a garage to be built behind the Pommers' house
with a breezeway connecting the garage to the house. That set of plans
was marked as plaintiffs' exhibit 5 ("the original plans"). Evidence was
presented indicating that the original plans included a brick ledge for the
exterior bricks of the garage to be placed upon. Childs submitted plans for
4
1190525 and 1190580
the garage to John Peterson, an engineer, because the City required that
the plans have an engineer's stamp approving the plans. Childs testified
that he chose Peterson as the engineer. The plans stamped by Peterson,
which were plaintiffs' exhibit 6, were submitted to and approved by the
City ("the approved plans"). The approved plans did not include a brick
ledge.
The Pommers met with Childs again on December 10, 2014, after the
plans were approved. The Pommers testified that only the three of them
were present at that meeting, that Childs presented them with an
estimate for building the garage, that the estimate indicated that the total
cost for the project was $65,874, and that the estimated time for
completion of the project was four to five weeks. The estimate further
stated that 20% of the total cost would be required to start work and that
payments would be based on a draw schedule. However, the Pommers
never received a draw schedule. Bud testified that he told Childs that the
Pommers wanted to move forward with the project and that they arranged
a meeting for the following day to sign a contract with Childs.
5
1190525 and 1190580
The Pommers testified that Childs brought Granger with him to the
meeting on December 11, 2014. The Pommers testified that they had
never met or heard of Granger before that meeting and that they were
surprised when he showed up at that meeting. The Pommers presented
evidence indicating that, during that meeting, Childs told them that he
did not have a contractor's license and that he needed Granger because he
was a licensed contractor. The Pommers testified that, during that
meeting, they were given a "cost plus" contract for the construction of the
garage and breezeway ("the contract"). Granger Construction was listed
as the contractor, and the Pommers were listed as the owners. The
description of the work included the following:
"Contractor will furnish all labor, equipment, and material to
construct and complete in a good workmanlike and substantial
manner, the following work of improvement:
"Garage as shown in the attached plans. Covered
walk as detailed in plans
"Estimated price of project is $65,874.00
"This is a good faith estimate based upon market
pricing and bids by subs/suppliers. This figure does
include 10% profit and 5% overhead."
6
1190525 and 1190580
The contract was executed during that meeting on December 11, 2014. It
was signed by Brenda as an owner. The signature line for the contractor
listed Granger Construction, and it was signed by Granger. At that time,
the Pommers gave Granger Construction a $13,000 check for the first
draw.
Construction started on the project around the middle of December
2014. Evidence was presented indicating that, during the construction
process, the Pommers were presented with five invoices from Granger
Construction: one for a $10,000 draw on December 30, 2014; one for a
$10,000 draw on January 9, 2015; one for a $10,000 draw on January 26,
2015; one for a $10,000 draw on February 11, 2015; and one for a $13,000
draw on March 10, 2015. The Pommers testified that Childs and Granger
were present when the invoices were presented to them and that Childs
predominantly did most of the talking and explaining regarding the
draws. The Pommers paid each of those invoices with checks made
payable to Granger Construction. Between December 11, 2014, and
7
1190525 and 1190580
March 10, 2015, the Pommers paid Granger Construction a total of
$66,000.
The evidence presented at trial indicated that the project
experienced significant delays. Evidence was presented indicating that
some of the delays were caused by the weather and because
subcontractors for the project were backed up. Evidence was also
presented indicating that the Pommers requested some changes to the
project, which contributed to some of the delays. Evidence was presented
indicating that Granger and Childs performed some of the physical labor
on the project, including digging the footings and putting up framing for
the slab for the garage. Bud testified that, as the project dragged on, he
began to wonder why Granger and Childs were doing the work at the
speed they were doing it instead of hiring subcontractors who could have
done the work faster. He further testified that he saw work done by
Childs and Granger that had to been redone. Evidence was presented
about issues that had arisen with the concrete for the breezeway, about
8
1190525 and 1190580
the Pommers' dissatisfaction with the finish of the concrete, and about
Childs's own dissatisfaction with the finish of the concrete.
Bud testified that, at the time the March 10, 2015, invoice was
presented to the Pommers, he and Brenda told the Childs and Granger
that they did not want to give them another check based on how things
had been going and because they wanted to be sure the job would be
finished. Bud testified that he and Brenda went out of town around the
first or second week of March and that they expected that the work would
be complete when they got back. Bud testified that, when they returned,
he observed that light fixtures were attached to the garage, but the wiring
was hanging down; that gates on the breezeway had been started, but
were not completed; that the work on the driveway and turn around had
not progressed; that painting had been started on the doors to the garage,
but were not completed; and that the hardware had not been installed on
the doors. He further testified that it appeared that a lot of work had
been started, but not finished.
9
1190525 and 1190580
When asked if he or Brenda raised these issues with Childs or
Granger, Bud testified that Childs and Granger were not very talkative
and that Childs subsequently told him that they needed to have a
meeting. The Pommers met with Granger and Childs at their kitchen
table. During the meeting, Childs and Granger told the Pommers that
they needed an additional draw and that they could not do any additional
work without more money. The evidence established that the meeting
became heated. At one point, Granger made the statement to Brenda:
"[M]y daughter rolls her eyes like that, and it pisses me off when she does
it too." The Pommers testified that, at one point, Childs turned his chair
around, was leaning over Brenda, and was screaming and yelling in her
face. Bud testified that Childs appeared to be angry, that Childs's "eyes
were different," that Brenda was back in her chair and not saying
anything at that time, that he felt like the confrontation was starting to
become dangerous, and that he was afraid for his wife and of the situation.
Brenda also testified that she was afraid and did not know what to do.
Bud testified that he stood up, said that things had gone far enough, and
10
1190525 and 1190580
told Granger and Childs to leave. Bud testified that Childs telephoned
him later that night, that Childs apologized, and that Childs asked if the
Pommers would give him and Granger a second chance to finish the job.
The Pommers met with the Childs and Granger again the following
day. The Pommers testified that, during that meeting, Childs and
Granger gave them paperwork they had not seen before, including time
sheets for the labor of Granger and Childs, a change-order document
indicating a total cost of $11,728.57 for the changes to the project, and a
punch list of items required to finish the job. Evidence was presented
indicating that Granger told the Pommers that the total cost to complete
the garage would be over $95,000 but that he would settle for $83,015.11.
Bud testified that, at the end of the meeting, the status of the project was
that Granger Construction and Childs would not do any more work until
the Pommers paid them more money. Bud testified that he did not feel
like any agreement had been reached at the end of the meeting and that
he told Childs and Granger that he would get back to them. Bud testified
that, because he did not want a replication of the previous heated
11
1190525 and 1190580
meeting, he and Brenda contacted an attorney about the situation.
Counsel hired by the Pommers then sent Granger Construction and Childs
a letter dated March 31, 2015. That letter stated:
"Please be advised that the undersigned represents [the
Pommers] regarding the construction work you have been
performing at their home. Granger Construction Company,
LLC entered into a contract with my clients on December 11,
2014. The estimated time of completion passed long ago. The
'good faith estimate' of $65,874 has been paid by client paying
$66,000. In a recent conversation, my clients were told that
the estimated job cost would exceed $95,000.
"Although there was a change order, the amount far exceeds
the 'good faith estimate.'
"Reviewing time records, you have charged 'skilled carpenter'
hourly rates of $37.50 for the simplest of labor work. There
are many discrepancies in the contract versus the actual
amount claimed to be due.
"I am aware that you offered to take away all of your profit
which you claimed is $12,450 and therefore bringing the total
job cost to $83,000. That offer is unacceptable to my client.
"The rude and unacceptable behavior of Mr. Paul Childs on
March 24 of screaming at Mrs. Pommer requires the
undersigned to be involved. You are to have no further
communications with Mr. or Mrs. Pommer.
12
1190525 and 1190580
"If you would like to attempt to resolve this matter short of
litigation, please call to arrange a convenient time to meet Mr.
Pommer and myself at my office.
"If I do not hear from you by Friday, April 3, I will assume you
do not care to resolve this matter amicably and my client will
proceed accordingly."
There is no evidence indicating that either Childs or Granger ever
contacted the Pommers' counsel after receiving that letter. There was no
further contact between the Pommers and Childs and Granger, but Childs
and Granger did return to the Pommers' house to retrieve their tools.
After Childs and Granger left the project site, Bud requested that
the City perform a final inspection of the garage. Bud testified that the
inspection took place on April 21, 2015, and that the garage did not pass
inspection at that time. Evidence was presented indicating that one issue
noted by the City's inspector was the fact that there were exposed rafter
tails that were untreated lumber and that that did not comply with the
applicable building code. The Pommers subsequently hired another
contractor and other companies to repair work done by Granger
Construction and to complete unfinished work on the project. The
13
1190525 and 1190580
Pommers paid $16,572.61 to complete the project. Thus, the Pommers
spent a total of $82,572.61 to complete the project.
Subsequently, cracks developed in the bricks on the garage. Bud
contacted James Martin Pitts, a structural engineer, to come look at the
garage. Pitts testified that the cracks indicated a foundational issue.
After some excavation was done, Pitts observed that there was no brick
ledge to support the bricks, which was an error. Childs also testified that
a brick ledge was important and critical.
Pitts further testified that he observed that there was a drainage
issue with the garage, i.e., that water was draining toward the garage;
that building codes require that water be turned away from a structure on
all four sides; that the garage was built too low, so water was directed
toward the garage rather than away from it; that that was a fatal error,
which means that it is virtually impossible or impossible to fix; and that,
although it can be corrected in some situations, it can be very difficult to
correct. He further testified that there were drainage issues with the
breezeway that could be corrected by removing the breezeway and
14
1190525 and 1190580
building it again. Pitts testified that, considering the combined issues
caused by the lack of the brick ledge and the lack of proper drainage, he
would recommend removal of the garage and breezeway.
On January 7, 2016, the Pommers filed a complaint against Childs
and Granger Construction, which they subsequently amended. In their
amended complaint, the Pommers alleged that Childs and Granger
Construction had breached the contract in numerous ways, had breached
the express warranty to perform their work in a workmanlike manner,
had breached various implied warranties, and had made fraudulent
representations to them. They also included a count alleging the tort of
outrage.
On February 29, 2016, Childs and Granger Construction filed their
answer to the amended complaint and a counterclaim. In the
counterclaim, Granger Construction asserted a claim of breach of
contract/unjust enrichment against the Pommers. The Pommers
subsequently filed their answer to the counterclaim.
15
1190525 and 1190580
On October 19, 2017, the Pommers filed a motion for leave to file a
second amended complaint to include a request to pierce the corporate veil
with regard to Granger Construction and to add Granger, in his individual
capacity, as an additional defendant. The Pommers further asserted that
Granger had died and that they intended to file a suggestion of death and
a motion to substitute an appropriate party for Granger. The trial court
granted the motion, and the Pommers filed their second amended
complaint. On October 20, 2017, the Pommers filed a suggestion of death
stating that Granger had died on August 17, 2017. The Pommers
subsequently filed a motion to substitute Melissa, as the administratrix
of Granger's estate, for Granger. The trial court granted that motion.
The trial court subsequently conducted a bench trial. After the
bench trial, the Pommers filed a motion to amend the pleadings to
conform to the evidence. The trial court granted that motion but stated
that it did not intend to allow the Pommers to raise new claims or causes
of action not raised or pleaded in the complaint and amended complaints.
16
1190525 and 1190580
On September 14, 2018, the trial court entered an order. In that
order, it stated:
"This matter came before the Court on the Second
Amended Complaint filed by Harry J. Pommer and Brenda S.
Pommer, Plaintiffs, against Granger Construction Company,
L.L.C., Paul D. Childs, and Daniel Granger, by and through
Melissa T. Granger, as Administratrix of the Estate of Daniel
D. Granger, Defendants; and on the Counterclaim filed by
Granger Construction Company, L.L.C. against the Plaintiffs.
Trial of this matter was held on May 1, 2018 through May 3,
2018. The Court, having received evidence and testimony ore
tenus from the parties and having considered the same, does
find as follows:
"1. Judgment is entered in favor of Plaintiffs
Harry J. Pommer and Brenda S. Pommer and
against Defendants Granger Construction and Paul
D. Childs, jointly and severally, in the amount of
Eighty Two Thousand Five Hundred Seventy Two
Dollars
and
61/l00ths
($82,572.61)
for
compensatory damages plus reasonable attorney's
fees in the amount of $50,062.50 plus the cost of
court.
"2. Plaintiffs Harry J. Pommer and Brenda S.
Pommer stated in their pleadings that they intend
to pierce the corporate veil of Granger Construction
as to Daniel [D.] Granger, its sole owner. The Court
reserves jurisdiction to make a final determination
on the issue of piercing the corporate veil in the
event that Plaintiff pursues such course of action
postjudgment.
17
1190525 and 1190580
"3. All claims against Melissa Granger as
Administratrix of the Estate of Daniel Granger are
hereby denied.
"4. Judgment is entered in favor of the
Counterclaim
Defendants
and
against
the
Counterclaim Plaintiffs.
"[5]. Any and all relief requested by the parties that is
not specifically addressed herein is denied."
Granger Construction and Childs originally filed a notice of appeal
from the trial court's September 14, 2018, order. On June 10, 2019, this
Court, by order, dismissed that appeal as arising from a nonfinal
judgment.
On July 29, 2019, Melissa, as administratrix of Granger's estate,
filed an answer to the Pommers' second amended complaint, addressing
the Pommers' request to pierce the corporate veil. The trial court
subsequently conducted a bench trial as to the Pommers' request to pierce
the corporate veil of Granger Construction. On March 12, 2020, the trial
court ruled in favor of Melissa, as the administratrix of Granger's estate,
as to the Pommers' request to pierce the corporate veil of Granger
Construction, thus rendering a final judgment.
18
1190525 and 1190580
Granger Construction and Childs appealed the judgment the trial
court entered in favor of the Pommers to this Court. The Pommers' cross-
appealed the trial court's judgment denying their request to pierce the
corporate veil of Granger Construction.
Standard of Review
" 'Because the trial court heard ore tenus
evidence during the bench trial, the ore tenus
standard of review applies. Our ore tenus standard
of review is well settled. " 'When a judge in a
nonjury case hears oral testimony, a judgment
based on findings of fact based on that testimony
will be presumed correct and will not be disturbed
on appeal except for a plain and palpable error.' "
Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003)
(quoting Allstate Ins. Co. v. Skelton, 675 So. 2d
377, 379 (Ala. 1996)).
" ' "...."
" '...
However,
"that
presumption
[of
correctness] has no application when the trial court
is shown to have improperly applied the law to the
facts." Ex parte Board of Zoning Adjustment of
Mobile, 636 So. 2d 415, 417 (Ala. 1994).'
"Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010)."
Mitchell v. K & B Fabricators, Inc., 274 So. 3d 251, 260 (Ala. 2018).
19
1190525 and 1190580
I. Case Number 1190525
A.
Childs argues that he is not liable under a breach-of-contract theory
because he was not a party to the contract.
" ' "The elements of a breach-of-contract claim under Alabama
law are (1) a valid contract binding the parties; (2) the
plaintiffs' performance under the contract; (3) the defendant's
nonperformance; and (4) resulting damages." ' Shaffer v.
Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009) (quoting
Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105 (Ala. 2002))."
Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020).
The contract stated that it was between Granger Construction and
the Pommers, and the contact was signed by Granger and Brenda. It is
undisputed that Childs was not a signatory on the contract, that Childs
was not named in the contract, and that Childs was not an owner or a
member of Granger Construction.
In their brief to this Court, the Pommers assert:
"Granger LLC and CHILDS agree that Granger LLC had
a contract with the POMMERS. CHILDS, however, argues
that he was not a party to the contract; therefore, he is not
liable for breach of contract. CHILDS is wrong.
20
1190525 and 1190580
"CHILDS testified that he was a subcontractor of
Granger LLC for the Pommer job. According to the contract,
which was prepared by MR. GRANGER, 'all work performed
by subcontractors shall be subject to all applicable terms and
conditions of the Contract Documents.' (C. 589). CHILDS
performed work at the POMMERS' house on generally a full
time basis. He was obligated to perform that work pursuant
to the terms of the contract. As discussed, CHILDS and
Granger LLC failed to perform the terms of the contract.
Accordingly, CHILDS and Granger LLC are both liable to the
POMMERS for breach of contract."
(Pommers' brief at p. 33 (capitalization in original).) Paragraph 21 of the
contract, which deals with subcontractors, provides as follows:
"Contractor shall have the right to subcontract any portion of
the work hereunder, and all work performed by subcontractors
shall be subject to all applicable terms and conditions of the
Contract Documents. Contracts between Contractor and
Subcontractors shall (1) require each subcontractor, to the
extent of the work to be performed by the subcontractor, to be
bound to the Contractor by the terms of the Contract
Documents, and to assume toward the Contractor all the
obligations and responsibilities which the Contractor, by
Contract Documents, assumes toward the Owner and
Architect, and (2) allow the Subcontractor the benefit of all
rights, remedies, and redress afforded to the Contractor by
these Contract Documents."
(Emphasis added.) When read in its entirety, it is clear that this
paragraph does not provide that a subcontractor owes any contractual
21
1190525 and 1190580
duties toward the owners of the property. Rather, it provides that the
work performed by subcontractors will be subject to the provisions of the
contract. However, it goes on to provide that contracts between the
contractor and subcontractors will include provisions binding the
subcontractor to the contractor and provisions by which the subcontractor
will assume duties and obligations toward the contractor. Thus, the
Pommers' argument in this regard is without merit and would not support
a finding that Childs was liable to them based upon the a breach-of-
contract theory. Based on the foregoing, we reverse the trial court's
judgment as to Childs and render a judgment in his favor.1
B.
1In the trial court, the Pommers argued that Childs was equitably
estopped from arguing that he was not liable for breach of contract
because, they asserted, he was a de facto contractor for the project. The
Pommers also asserted claims of fraud and the tort of outrage. Because
the trial court did not state the basis for its judgment against him, Childs
addressed the de facto-contractor argument and the Pommers' additional
claims on appeal. However, in their brief to this Court, the Pommers have
not presented any argument that the de facto-contractor argument and
their additional claims actually supported the trial court's judgment
against Childs.
22
1190525 and 1190580
Granger Construction argues that the evidence was insufficient for
the Pommers to prevail on any breach-of-contract claim because the
Pommers allegedly repudiated the contract without performing their
obligation to pay Granger Construction.
"In New Properties, L.L.C. [v. Stewart, 905 So. 2d 797
(Ala. 2004)], supra, this Court addressed the manner in which
a party preserves a challenge to the sufficiency of the evidence
when, in a bench trial, a trial court issues its ruling without
issuing findings of fact. In that case, this Court stated:
" 'Although Rule 52(b)[, Ala. R. Civ. P.,] speaks to
those situations in which a trial court makes
findings of fact, the rule does not indicate what is
to occur when the trial court makes no such
findings. As Justice Lyons has noted:
" ' "If a court makes findings of fact in a
nonjury case, Rule 52(b), Ala. R. Civ. P.,
excuses the losing party from objecting
to the findings or moving to amend
them or moving for a judgment or a new
trial as a predicate for an appellate
attack on the sufficiency of the
evidence. By negative implication, such
steps are required when the court
makes no findings of fact." '
"905 So. 2d at 800 (quoting Ex parte James, 764 So. 2d 557,
561 (Ala.1999) (plurality opinion) (Lyons, J., concurring in the
result)) (emphasis in New Properties). After reviewing
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1190525 and 1190580
conflicting caselaw on the subject, the Court in New Properties
stated:
" '[W]e hold that, in a nonjury case in which the
trial court makes no specific findings of fact, a
party must move for a new trial or otherwise
properly raise before the trial court the question
relating to the sufficiency or weight of the evidence
in order to preserve that question for appellate
review. See Rule 52(b), Ala. R. Civ. P. ...'
"905 So. 2d at 801-02."
Weeks. v. Herlong, 951 So. 2d 670, 676-77 (Ala. 2006). In this case,
Granger Construction and Childs filed a motion for a judgment as a
matter of law at the close of all the evidence. In that motion, they did not
present any argument that the Pommers had repudiated the contract and
that, therefore, they could not prevail on any breach-of-contract claim.
Additionally, after the trial court entered its judgment, Granger
Construction and Childs did not file any postjudgment motions raising an
argument that the evidence established that the Pommers had repudiated
the contract. Therefore, because this issue is not properly preserved for
appellate review, we will not reverse the trial court's judgment on this
basis.
24
1190525 and 1190580
C.
Granger Construction also argues that the trial court's
compensatory-damages award is clearly erroneous because the Pommers
allegedly did not adequately prove their damages at trial. Although
Granger Construction and Childs filed a motion for a judgment as a
matter of law at the close of all the evidence, they did not raise any
argument that the Pommers had failed to prove their compensatory
damages. Additionally, after the trial court entered its judgment, Granger
Construction and Childs did not file any postjudgment motions in which
they challenged the amount of damages awarded by the trial court or
argued that the Pommers had not presented evidence to establish their
damages in this case. Accordingly, this issue is not properly preserved for
our review and will not support a reversal of the compensatory-damages
award. See Weeks, supra.
D.
Granger Construction and Childs further argue that the trial court
erred in awarding the Pommers attorneys' fees.
25
1190525 and 1190580
1.
First, Childs argues that the trial court erred in assessing attorneys'
fees against him because he was not a party to the contract. We agree.
As we held in Part I.A. of this opinion, Childs was not a party to the
contract and could not be held liable for breaching the contract.
Therefore, we reverse the trial court's judgment assessing attorneys' fees
against Childs.
2.
Granger Construction also argues that the trial court erred in
awarding the Pommers attorneys' fees because, it asserts, there was no
admissible evidence to support the award of attorneys' fees. Before the
trial court entered its judgment, it conducted a hearing discussing the
parties' positions regarding whether attorneys' fees should be included in
a judgment for the prevailing parties. During that hearing, the following
took place:
"[THE COURT:] And how much time do you-all need to
submit your requested attorneys' fees?
26
1190525 and 1190580
"[DEFENSE COUNSEL]: I just need a couple of days for
my bookkeeper to put the invoices together.
"[PLAINTIFFS' COUNSEL]: Yeah. I think a few days is
fine, Your Honor.
"THE COURT: If y'all can get me those. I literally -- I
have got an order I'm about to enter pretty quick, but I can do
that rather quickly. What I'm going to ask you-all -- and I
don't know -- I mean I have got some idea what I'm going to do,
but if we are dealing with attorneys' fees, if y'all could have me
that by the end of next week. Is that okay?
"[DEFENSE COUNSEL]: Sure.
"[PLAINTIFFS' COUNSEL]: That will be fine.
"THE COURT: And to each other by, say, next Friday.
How long would y'all need to review each others in the event
that you did need to file an objection?
"[DEFENSE COUNSEL]: Judge, perhaps -- I'll just
make a suggestion to the Court? If Your Honor wants to enter
a ruling based upon attorneys' fees, we can come back on a
post-trial motion and deal with attorneys' fees at that time.
"Would that be an appropriate way to do it and just
schedule another hearing?
"THE COURT: Is that okay with you, [plaintiffs'
counsel]?
"[PLAINTIFFS' COUNSEL]: Yes, sir.
27
1190525 and 1190580
"THE COURT: Or you want to do --
"[PLAINTIFFS' COUNSEL]: Either way is fine.
"THE COURT: How do you want to do it? Because we
specifically agreed and I recall that we were going to deal with
the attorneys' fees after the fact, and so -- all right. Then what
I'll do is whatever I do. And if I were to include -- if I were to
include reasonable attorneys' fees, then I'll include plus
reasonable attorneys' fees to be established.
"And then y'all can get with Ellen [the trial court's
judicial assistant] and we can find a date to have a hearing or
submit what you need to then.
"[DEFENSE COUNSEL]: So do we email our invoices to
Ellen in PDF format and then carbon copy the other attorneys?
"THE COURT: That's probably the easiest way. And
then if there was an objection, then we can deal with that.
"....
"[THE COURT:] Then, if y'all will get me those, then I
will go ahead and get you-all a ruling. And if we needed to
have an additional date, if y'all just file something and request
a hearing date with Ellen, and make sure we can get it set
within the time prescribed.
"We probably can handle it almost -- if we go that route,
[defense counsel], just whoever files any motions to alter,
amend or vacate, if there are any filed, which I assume that
the non-prevailing party would file. But if they are filed,
maybe we can deal with it through that as well.
28
1190525 and 1190580
"And when I do set that when -- assuming they get filed
and assuming that I'm going to set them, we can deal with
them at that stage, provided we get them set. And you know
I will get them set within the time limits that we'll be dealing
with.
"[DEFENSE COUNSEL]: Okay.
"[PLAINTIFFS' COUNSEL]: All right."
Subsequently, the parties emailed their fee invoices to the trial court's
judicial assistant. However, counsel for Granger Construction and Childs
did not file any objection to the information Pommers' counsel provided to
the trial court regarding attorneys' fees. In its judgment, the trial court
ordered Granger Construction and Childs to pay attorneys' fees to the
Pommers. However, counsel for Granger Construction and Childs did not
file a postjudgment motion challenging the award of attorneys' fees.
Therefore, this issue is not properly preserved for our review and will not
support a reversal of the attorney-fee award against Granger
Construction. See Nichols v. Pate, 54 So. 3d 398 (Ala. Civ. App. 2010);
Jones v. Sherrell, 52 So. 3d 527 (Ala. Civ. App. 2010).
E.
29
1190525 and 1190580
Finally, Granger Construction asserts that the trial court
erroneously denied its counterclaim seeking compensation for labor,
materials, profit, and overhead that it alleges was due under the contract.
Granger Construction and Childs did not raise any argument in their
motion for a judgment as a matter of law regarding Granger
Construction's counterclaim. In its judgment, the trial court did not make
any findings of fact as to Granger Construction's counterclaim. Rather,
it merely entered a judgment in favor of the Pommers and against
Granger Construction as to the counterclaim. Granger Construction did
not file any postjudgment motions in which it argued that it had
presented sufficient evidence to support its counterclaim. Therefore,
Granger Construction has not preserved this issue for appellate review
See Weeks, supra.
Based on the foregoing, in case number 1190525, we reverse the trial
court's judgment against Childs, including the attorney-fee award against
Childs, and render a judgment in his favor. However, we affirm the trial
court's judgment as to Granger Construction.
30
1190525 and 1190580
II. Case Number 1190580
In their cross-appeal, the Pommers argue that the trial court
erroneously denied their request to pierce the corporate veil of Granger
Construction.
"Piercing the corporate veil is not a power that is lightly
exercised. The concept that a corporation is a legal entity
existing separate and apart from its shareholders is well
settled in this state. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536
So. 2d 37 (Ala.1988). Alorna Coat Corp. v. Behr, 408 So. 2d
496 (Ala.1981). The mere fact that a party owns all or a
majority of the stock of a corporation does not, of itself, destroy
the separate corporate identity. Messick v. Moring, 514 So. 2d
892 (Ala. 1987); Forester & Jerue, Inc. v. Daniels, 409 So. 2d
830 (Ala. 1982). The fact that a corporation is
under-capitalized is not alone sufficient to establish personal
liability. Co-Ex Plastics, Inc. v. Alapak, Inc., supra; East End
Memorial Association v. Egerman, 514 So. 2d 38 (Ala. 1987).
To pierce the corporate veil, a plaintiff must show fraud in
asserting the corporate existence or must show that
recognition of the corporate existence will result in injustice or
inequitable consequences. Washburn v. Rabun, 487 So. 2d
1361 (Ala.1986); Cohen v. Williams, 294 Ala. 417, 318 So. 2d
279 (1975).
"....
"... Where the law recognizes one-man corporations, it is
obvious that the law accepts the fact of domination by one
person. See ... Co-Ex Plastics, Inc. v. Alapak, Inc., supra.
Therefore, mere domination cannot be enough for piercing the
31
1190525 and 1190580
corporate veil. There must be the added elements of misuse of
control and harm or loss resulting from it. Messick v. Moring,
supra; Washburn v. Rabun, supra.
"The corporate veil may be pierced where a corporation
is set up as a subterfuge, where shareholders do not observe
the corporate form, where the legal requirements of corporate
law are not complied with, where the corporation maintains no
corporate records, where the corporation maintains no
corporate bank account, where the corporation has no
employees, where corporate and personal funds are
intermingled and corporate funds are used for personal
purposes, or where an individual drains funds from the
corporation. See, e.g., Forester & Jerue, Inc. v. Daniels, supra;
Hamrick v. First National Bank of Stevenson, [518 So. 2d 1242
(Ala. 1987)]; Deupree v. Ruffino, 505 So. 2d 1218 (Ala.1987);
Messick v. Moring, supra; East End Memorial Association v.
Egerman, supra."
Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398, 400-01 (Ala. 1989).
In Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So. 2d 37 (Ala. 1988),
AlaPak, Inc., was a corporation and Gregg Gantt was the sole stockholder
and director and the principal officer of Alapak. This Court included the
following facts about the formation of AlaPak:
"Gantt began a packaging and supply business in 1980,
using the name Alabama Packaging and Supply, and he
operated that business as a sole proprietorship until 1984,
when he incorporated this business as AlaPak, Inc. Upon
incorporation, Gantt transferred all assets and liabilities of
32
1190525 and 1190580
'Alabama Packaging and Supply,' sole proprietorship, to
AlaPak, the corporation. As a result of this transfer, AlaPak
assumed total assets of $591,894.55 and total liabilities of
$580,054.48. The capital stock of the corporation was
$1,000.00 and there existed $10,839.87 in paid-in capital.
Soon after incorporation, AlaPak entered a financing
arrangement with National Acceptance Corporation ('NAC')
and entered loan transactions with First Montgomery Bank."
536 So. 2d at 38.
In July 1985, AlaPak and Co-Ex Plastics, Inc. ("Co-Ex"), entered into
an open-account supplier-purchaser relationship. During the relationship,
Co-Ex sold over $127,000 worth of goods to AlaPak. However, in January
1986, the account was overdue. Subsequently, Co-Ex sued AlaPak and
Gantt to collect the overdue amount. The trial court conducted a bench
trial. This Court set forth the following summary of the evidence that was
presented at trial:
"Evidence was presented at trial indicating that Gantt,
the sole stockholder and director and the principal officer of
AlaPak:
"1) could not produce a stock certificate;
"2) had retained the 'Alabama Packaging and
Supply Company' bank account as AlaPak's bank
account; and
33
1190525 and 1190580
"3) had continued to use the 'Alabama Packaging
and Supply Company' checks because, he stated, he
lost the AlaPak checks.
"It was further shown that Gantt had not signed checks in a
representative capacity and that Gantt also varied the manner
in which he referred to the corporation, i.e., 'AlaPak,' 'Alabama
Packaging and Supply Co.,' and 'Alabama Packaging and
Supply, Inc.'
"AlaPak closed its doors in August 1986, after NAC
withdrew its line of credit. A bankruptcy petition was
prepared thereafter, but was not filed, which disclosed a total
of $391,500.30 owed to unsecured creditors and $110,000.00 in
accounts receivable subject to a security interest in favor of
NAC and inventory of $72,000.00 existing."
Co-Ex Plastics, 536 So. 2d at 38. The trial court entered a judgment in
favor of Co-Ex and against AlaPak. However, it refused to pierce the
corporate veil and entered a judgment in favor of Gantt. Co-Ex filed
postjudgment motions, but the trial court again denied Co-Ex's request for
relief against Gantt. On appeal, Co-Ex argued that Gantt had operated
AlaPak in such a manner that the corporate veil should have been pierced
and Gantt should have been held individually liable for the debts of the
corporation.
34
1190525 and 1190580
"The concept that a corporation is a legal entity existing
separate and apart from those who compose it is a well-settled
rule in the State of Alabama. Cohen v. Williams, 294 Ala. 417,
420, 318 So. 2d 279, 280 (1975) (quoting 18 Am. Jur. 2d
Corporations § 14 at 559 (1965)). It is also a well-settled rule
in this State that the corporate form can be set aside, and the
individual or individuals owning all of its stock and assets can
be treated as the business entity, even in the absence of fraud,
as
a
means
of
preventing
injustice
or
inequitable
consequences. Cohen, 294 Ala. at 421, 318 So. 2d at 281. This
Court has also held:
" 'A separate corporate existence will not be
recognized when a corporation is so organized and
controlled and its business so conducted as to make
it a mere instrumentality of another or the alter
ego of the person owning and controlling it.'
"Woods v. Commercial Contractors, Inc., 384 So. 2d 1076, 1079
(Ala. 1980).
"Co-Ex first contends that AlaPak was merely an
instrumentality of Gantt, and that this was shown by Gantt's
failure to follow corporate formalities in the course of its
business, i.e., the failure of Gantt to produce a stock
certificate; the retention of the Alabama Packaging and Supply
Company bank account, and the continued use of the Alabama
Packaging and Supply Company checks, which were never
shown to have been signed in a representative capacity.
Gantt, on the other hand, argues that Co-Ex knew or should
have known that AlaPak was a corporation and acknowledged,
AlaPak, as such, and therefore, that no fraud can be inferred
from AlaPak's neglect of corporate formalities. We find
[Gantt's] argument persuasive on this issue. We have held
35
1190525 and 1190580
that in the absence of fraud or inequity, the sole shareholder
in a corporation will be protected from individual liability by
the corporate entity, Washburn v. Rabun, 487 So. 2d 1361
(Ala.1986). In this case, the mere fact that minor formalities,
such as those cited by Co-Ex in the business operations of
AlaPak, were not followed does not rise to such a level that the
corporate veil should be pierced. There is no indication in the
record that AlaPak attempted to fraudulently induce Co-Ex
into any contractual arrangements, nor is there any indication
that the ends of justice would be disserved if the corporate veil
were not pierced.
"Co-Ex also argues that AlaPak was under-capitalized
and, therefore, that the corporate veil should be pierced. Co-Ex
suggests that the $1,000.00 of capital stock and the
$300,000.00 business credit line were inadequate to cover the
potential debts of the corporation. Gantt counters by arguing
that AlaPak conformed to the general operating standards of
one-man corporations and argues that Co-Ex did not rely on
any representation regarding AlaPak's financial condition
when it contracted with it, and that Co-Ex initiated an
inadequate inquiry into the financial status of AlaPak. Gantt
further argues that at the time of incorporation, AlaPak's
assets exceeded its liabilities. We find Gantt's argument
persuasive. We recently held in East End Memorial Ass'n v.
Egerman, 514 So. 2d 38 (Ala.1987), that 'a party who has
contracted with a financially weak corporation and is
disappointed in obtaining satisfaction of his claim cannot look
to the dominant stockholder or parent corporation in the
absence of additional compelling facts.' 514 So. 2d at 44,
quoting Tigrett v. Pointer, 580 S.W.2d 375, 382 (Tex. Civ. App.
1978). No evidence was presented showing that Co-Ex
inquired about the status of AlaPak, other than through a
36
1190525 and 1190580
bank credit check, nor was there any evidence that Co-Ex
requested a personal guarantee from Gantt.
"Voluntary creditors of corporations are held to a higher
standard because they 'are generally able to inspect the
financial structure of a corporation and discover potential risks
of loss before any transaction takes place. Consequently,
courts are less sympathetic with voluntary creditors who,
having had the opportunity of inspection, nevertheless elected
to
transact
with
an
undercapitalized
corporation.'
Disregarding the Entities of Closely Held and Parent-
Subsidiary Corporate Structures, 12 Cum. L. Rev. 155, 165
(1981). We, therefore, must affirm the trial court's refusal to
pierce the corporate veil for the reasons advanced by Co-Ex.
"The rule in Alabama as to ore tenus evidence, is, as
stated in Barrett v. Odum, May & DeBuys, 453 So. 2d 729
(Ala.1984), that 'every presumption will be indulged in favor
of the trial court, and its findings will not be disturbed on
appeal unless palpably wrong or clearly erroneous.' Co-Ex
contends that the trial court erred in its reliance on Paddock,
Smith & Aydlotte v. WAAY Television, 410 So. 2d 106 (Ala.
Civ. App. 1982), to decide the issues in this case because, it
says, many evidentiary features distinguish the two cases. We
must disagree. We find the following similarities in Paddock
sufficient to uphold the trial court's reliance on that case:
"1) Paddock, Smith & Aydlotte ('Paddock')
was a duly formed corporation.
"2) No evidence of Paddock's corporate status
was intentionally concealed.
37
1190525 and 1190580
"3) WAAY failed to make adequate inquiries
into the financial status of Paddock.
"Similar factors were present in the instant case. Therefore,
we will not disturb the trial court's use of that precedent as a
yardstick in evaluating the evidence in this case."
Co-Ex Plastics, 536 So. 2d at 38-40.
" '[A] separate legal existence will not be recognized
when a corporation is "so organized and controlled
and its business conducted in such a manner as to
make it merely an instrumentality of another,"
Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 28,
29 So. 2d 298, 302 (1947), or when it is the "alter
ego" of the person owning and controlling it.
Whether the separate legal entity of a corporation
may be "pierced" and personal liability imposed is
"a question of fact treated as an evidentiary matter
to be determined on a case by case basis." Messick
v. Moring, 514 So. 2d 892, 893 (Ala.1987); accord
Deupree v. Ruffino, 505 So. 2d 1218 (Ala.1987).'8
"Ex parte AmSouth Bank of Alabama, 669 So. 2d 154, 156
(Ala. 1995).
"______________________
"8See also R. Thigpen, Alabama Corporation Law § 8:3
(3d ed. 2003) (explaining that our courts do not appear to have
established a consistent line analytically between those
circumstances when a corporation is said to be an 'alter ego' as
opposed to an 'instrumentality'); id. at § 8:7 (discussing
38
1190525 and 1190580
'brother-sister corporations and the theory of "enterprise
entity" ')."
Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396, 408 (Ala.
2013).
Granger Construction was a limited-liability company. The evidence
presented to the trial court indicated that Granger signed the Articles of
Organization creating Granger Construction ("the articles") on April 6,
2007, and that he filed them in the Baldwin Probate Court on April 9,
2007. The articles listed Granger as the registered agent for the company
and listed Granger's home address as the registered office of the company.
The articles also listed Granger as the initial member, organizer, and
manger of the company. Granger was the only listed member of the
company.
Contrary to the assertions in the Pommers' brief to this Court,
Melissa, who was Granger's wife, also introduced into evidence the
operating agreement for Granger Construction that was signed by
Granger on April 6, 2007. Copies of the tax returns for the Grangers and
Granger Construction were also introduced into evidence. Further, copies
39
1190525 and 1190580
of various documents for Granger Construction were entered into
evidence, including copies of Granger Construction's business licenses;
copies of Granger Construction's license from the Home Builders
Licensure Board; copies of 1099-A "Miscellaneous Income" and 1099-B
"Proceeds from Broker and Barter Exchange Transactions" tax forms that
had been issued by Granger Construction; copies of some of Granger
Construction's contracts and change-order forms; a copy of a 2016 workers'
compensation yearly audit for Granger Construction; and a March 25,
2016, certificate of liability insurance for Granger Construction.
Furthermore, evidence was presented indicating that Granger had
consistently held himself out as doing business as Granger Construction
Company, LLC.
The
Pommers
argue
that
Granger
Construction
was
undercapitalized. However, they did not present any evidence as to what
would constitute adequate funding for a single-member limited liability
construction company. Additionally, it is undisputed that the Pommers
40
1190525 and 1190580
did not make any inquiry into Granger Construction or its financial status
before they entered into the contract.
The Pommers argue that the fact that Granger Construction never
conducted any meetings demonstrates that the company disregarded the
corporate form. However, the Pommers have not cited any relevant
authority to support their argument in this regard. The Pommers do not
cite to any provisions of the former Alabama Limited Liability Company
Law, former § 10-12-1 et seq., which was subsequently renumbered as §
10A-5-1.01 et seq., Ala. Code 1975, or its successor, the Alabama Limited
Liability Company Law of 2014, § 10A-5A-1.01 et seq., Ala. Code 1975, to
support its assertion that Granger Construction was required to conduct
any meetings. Rather, they rely solely on this Court's decision in Econ
Marketing, Inc. v. Leisure American Resorts, Inc., 664 So. 2d 869 (Ala.
1994). However, nothing in Econ Marketing addresses the issue whether
a limited-liability company must conduct meetings. Rather, it merely
addresses the failure of a corporation "to keep complete and correct
records of all transactions of the corporation and minutes of the
41
1190525 and 1190580
proceedings of its shareholders and board of directors." Econ Mktg., 664
So. 2d at 870. Therefore, the Pommers' argument in this regard does not
comply with Rule 28(a)(10), Ala. R. App. P.
The Pommers also point to the fact that Granger Construction did
not have any employees. However, the fact that this single-person
limited-liability construction company did not have any employees would
not support piercing the corporate veil in this case. Although Granger
Construction did not have any employees, evidence was presented
indicating that Granger performed work under the contract and that
Granger Construction also hired subcontractors, including Childs, to
perform work under the contract. These facts do not support a finding of
fraud in asserting the corporate existence and do not support a finding
that the recognition of the corporate existence would result in an injustice
or inequitable consequences.
Finally, the Pommers assert that Granger Construction was the
alter ego of Granger. During the hearing on the issue of piercing the
corporate veil, Melissa, Granger's wife and the administratrix of his
42
1190525 and 1190580
estate, testified. Melissa testified that she was never a member, manager,
or officer of Granger Construction, that she never owned any part of
Granger Construction, and that she never held a position with Granger
Construction. Melissa gathered and produced all the documents for
Granger Construction that she could find. Evidence was presented
indicating that Granger Construction maintained a checking account
separate and distinct from the Grangers' household checking account and
from Melissa's separate business account. The Pommers presented
evidence indicating that Granger wrote checks to himself. However,
Melissa testified that those were Granger's paychecks. The Pommers also
presented evidence indicating that there were some checks that were
written to Melissa. Melissa testified that those were some of Granger's
paychecks, that she did the household banking, and that Granger would
write the checks to her so that she could deposit them when he was not
able to go to the bank. The Pommers also assert that Granger routinely
used Granger Construction's bank account to pay personal bills. The
Pommers presented evidence indicating that some of the checks written
43
1190525 and 1190580
on the company's bank account were either for, or appeared to be for,
personal purposes. However, Melissa testified that she did not have
knowledge of what many of those checks were written for or what they
related to. During the Pommers' examination of Melissa, the following
occurred:
"[PLAINTIFFS' COUNSEL:] Okay. Was it unusual for
Mr. Granger to pay personal bills with company checks?
"[MELISSA;] It -- I don't know. I was not party to how
he did his business. I have -- I have a -- I had my own
business, and we discussed how we generally ran our
individual LLCs, but I did not watch over him.
"[PLAINTIFFS' COUNSEL:] Okay. I'm going to call your
attention to -- I took your deposition November 5, 2019; right?
"[MELISSA:] I assume that's the date if you're telling
me. I don't remember specifically.
"[PLAINTIFFS' COUNSEL:] But you did give a
deposition?
"[MELISSA:] I did give a deposition.
"[PLAINTIFFS' COUNSEL:] I call your attention to page
15 and I want to -- I'm going to show it to you. I'm going to
read the question. I want you to read the answer.
44
1190525 and 1190580
"[PLAINTIFFS' COUNSEL:] 'Was it unusual to pay
personal bills out of the Granger Construction, LLC account?'
(As read.)
"[MELISSA:] 'Okay. Not for himself. He counted it as
a draw.' (As read.)
"[PLAINTIFFS' COUNSEL:] So when your deposition
was given, you testified that it was typical for him to pay
personal bills with a personal check?
"[MELISSA:] Yes. But you're asking me if I have
knowledge. I was not there with him when he did it. So, yes,
that was the general way that we both, sole proprietors, run
our businesses, but we count them as draw.
"[PLAINTIFFS' COUNSEL:] What do you mean? Are
you talking about you or him now when you count them as
draw?
"[MELISSA:] I'm talking about how we as a married
couple who each had in his case -- has still, in my case -- a
single member sole proprietor LLC, how we did things on our
own in our businesses.
"[PLAINTIFFS' COUNSEL:] Are you saying that he
counted that as a draw? If he went and bought $50 worth of
groceries for the house, that he counted it as a draw?
"[MELISSA:] If it was for the house, he would have
counted it as a draw. If it was for clients who he wanted to
bring something, then he would have counted it -- I can't speak
to what each and every item was."
45
1190525 and 1190580
Melissa also testified that there were occasions when their household
account was used to pay Granger Construction expenses.
The evidence presented at trial would support a finding by the trial
court that Granger did not ignore the corporate forms of Granger
Construction and that the company was not run as an instrumentality of
or as the alter ego of Granger. Additionally, the evidence presented would
also support a finding by the trial court that the Pommers did not
establish fraud in asserting the corporate existence and did not establish
that the recognition of the corporate existence, under the facts of this case,
would result in an injustice or inequitable consequences. Therefore, the
trial court's denial of the Pommers' request to pierce the corporate veil of
Granger Construction was not plainly and palpably wrong.
Conclusion
Based on the forgoing, in case number 1190525, we affirm the trial
court's judgment as to Granger Construction. However, we reverse the
trial court's judgment as to Childs and render a judgment in favor of
Childs. In case number 1190580, we affirm the trial court's judgment.
46
1190525 and 1190580
1190525 -- AFFIRMED IN PART; REVERSED IN PART; AND
JUDGMENT RENDERED.
1190580 -- AFFIRMED.
Parker, C.J., and Bolin, Bryan, and Mitchell, JJ., concur.
Shaw, Sellers, Mendheim, and Stewart, JJ., concur in the result.
47 | September 3, 2021 |
5c387737-b64d-4718-b620-d84102464d2e | Ex parte Shane Taylor and Shane A. Taylor & Associates, P.C. | N/A | 1200537 | Alabama | Alabama Supreme Court | Rel: September 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200537
_________________________
Ex parte Shane A. Taylor and Shane A. Taylor & Associates, P.C.
PETITION FOR WRIT OF MANDAMUS
(In re: Kimberly Hall-Smith
v.
Shane A. Taylor and Shane A. Taylor & Associates, P.C.)
(Mobile Circuit Court, CV-21-900016)
WISE, Justice.
1200537
This case involves a petition for a writ of mandamus filed by the
defendants below, Shane A. Taylor ("Taylor") and Shane A. Taylor &
Associates, P.C. ("the law firm"), asking this Court to direct the Mobile
Circuit Court to vacate its March 22, 2021, order denying their motion to
strike the jury demand in the complaint filed against them by Kimberly
Hall-Smith, the plaintiff below, and to enter a new order granting their
motion to strike.
Facts and Procedural History
Taylor is a licensed attorney; the law firm is his company and is
located in Mobile; and Hall-Smith worked as paralegal for the law firm for
a period. On August 21, 2020, the law firm and Hall-Smith entered into
an "Employee Confidentiality Agreement" ("the agreement"), which
included the following provision:
"JURY WAIVER. Employee and the Company acknowledge
that jury trials significantly increase the costs of any litigation
between the parties. It is also acknowledged that jury trials
require a longer length of time to adjudicate the controversy.
On this basis, all parties waive their right to have any matter
related to this agreement or Employee's employment settled by
jury trial."
2
1200537
The agreement was signed by Hall-Smith. Kayla Luker signed the
agreement for the law firm. Subsequently, the law firm terminated Hall-
Smith's employment.
On January 5, 2021, Hall-Smith sued Taylor and the law firm in the
Mobile Circuit Court. In the complaint, Hall-Smith alleged that she had
been employed as a paralegal by the law firm and Taylor; that, "[o]n
multiple occasions over a period of months during the course of [her]
employment," Taylor had negligently, recklessly, and/or intentionally
subjected her to "harmful, unwanted, offensive and sexually charged
physical contact"; that Taylor had also made "multiple and regular
sexually charged comments" to her; that, on one occasion, Taylor had
exposed himself to her while in his office; that Taylor had come to her
home uninvited; that Taylor had told her that he had flown his drone to
her home and that he had actually done so; that, "on at least one
occasion," Taylor had followed her "closely while both were in their
respective vehicles, tailgating her, flying around her and then braking in
front of her in an attempt to either cause her bodily harm or place her in
fear of the same"; and that, when she made it clear to Taylor that she
3
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would not tolerate his continuing offensive conduct, Taylor terminated her
employment, screamed at her, and told her he would " 'burn her to the f----
-- ground.' " Hall-Smith alleged that Taylor's conduct had caused her to
suffer "severe and ongoing damages including but not limited to
humiliation, fear, mental anguish and the loss of her employment." She
asserted claims of negligence and/or wantonness and the tort of
outrage/intentional infliction of emotional distress against Taylor and the
law firm. Hall-Smith further asserted claims of assault, battery, and
invasion of privacy against Taylor. Finally, the complaint included a
demand for a trial by jury.
On February 12, 2021, Taylor and the law firm filed their answer to
the complaint and a counterclaim against Hall-Smith. In their
counterclaim, they asserted a conversion claim against Hall-Smith. In
addition, the law firm asserted a claim of intentional interference with
business relations against Hall-Smith.
On that same day, Taylor and the law firm filed a motion to strike
Hall-Smith's jury demand based on the jury-waiver provision included in
the agreement. They asserted that Hall-Smith's claims clearly arise from
4
1200537
her employment with the law firm and that their counterclaims against
Hall-Smith "are related to both the subject matter of the [agreement] and
[Hall-Smith's] employment."
On February 16, 2021, Hall-Smith filed her first amended complaint
in which she added two new claims against Taylor -- abuse of process and
malicious prosecution. Taylor and the law firm subsequently filed their
answer to the first amended complaint.
On March 18, 2021, Hall-Smith filed her response in opposition to
the defendants' motion to strike her jury demand. She alleged that
Taylor was not a party or a signatory to the agreement; that she and the
law firm were the only parties to the agreement; and that, therefore, the
agreement could not be enforced with respect to any claims against
Taylor. However, Hall-Smith conceded that she had waived her right to
a jury trial as to her negligence and/or wantonness claims against the law
firm and asserted that the action should be bifurcated to allow her
remaining claims to be heard by a jury. She specifically asserted:
"With one exception, none of the claims against the Firm in
Count Five (Outrage/IIED) are in any way related to Ms. Hall-
Smith's employment as they constitute an intentional tort for
5
1200537
conduct outside and unrelated to the employment relationship.
Complaint, paras. 1-15:25-29. Ms. Hall-Smith concedes that
to the extent Count Five states a claim against the Firm
related to her termination from employment, she has waived
her right to a jury trial. As such, this specific claim should be
bifurcated to allow her remaining claims to be heard by a
jury."
(Emphasis in original.)
On March 18, 2021, the defendants filed an amended motion to
strike Hall-Smith's jury demand. On March 22, 2021, after conducting a
hearing, the trial court entered an order denying the defendants' motion
to strike Hall-Smith's jury demand.1
The defendants subsequently filed their petition for the writ of
mandamus asking this Court to set aside the trial court's March 22, 2021,
order denying their motion to strike and to enter an order striking Hall-
Smith's jury demand. This Court ordered answer and briefs solely as to
the issue whether the trial court had erroneously refused to strike Hall-
1The defendants did not attach a copy of a transcript of the hearing
to their petition.
6
1200537
Smith's demand for a jury trial on her claims against the law firm.2 Hall-
Smith has not filed a response to the mandamus petition.
Standard of Review
" 'The standard governing our review of an
issue presented in a petition for the writ of
mandamus is well established:
" ' "[M]andamus
is
a
drastic
and
extraordinary writ to be issued only
where there is (1) a clear legal right in
the petitioner to the order sought; (2)
an
imperative
duty
upon
the
respondent to perform, accompanied by
a refusal to do so; (3) the lack of another
adequate remedy; and (4) properly
invoked jurisdiction of the court."
" 'Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989).
" 'Mandamus is an appropriate remedy where
the availability of a jury trial is at issue, as it is in
this case. Ex parte Merchants Nat'l Bank of
Mobile, 257 Ala. 663, 665, 60 So. 2d 684, 686
(1952).'
2By ordering answer and briefs solely on the issue of Hall-Smith's
jury-trial demand as to her claims against the law firm, we implicitly
denied the petition for the writ of mandamus regarding the denial of the
motion to strike her demand for a jury trial as to her claims against
Taylor. See Ex parte Carson, 945 So. 2d 448 (Ala. 2006).
7
1200537
"Ex parte Cupps, 782 So. 2d 772, 774-75 (Ala. 2000)."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Discussion
The defendants assert that the trial court erroneously denied their
motion to strike Hall-Smith's demand for a jury trial on her claims against
the law firm. The agreement included a provision in which Hall-Smith
and the law firm each agreed to waive the right to a jury trial as to "any
matter related to this agreement or Employee's employment." With
regard to contractual waivers of the right to a jury trial, this Court has
stated:
"The right to a jury trial is a significant right in our
jurisprudence. 'Public policy, the Alabama Rules of Civil
Procedure, and the Alabama Constitution all express a
preference for trial by jury.' Ex parte AIG Baker Orange
Beach Wharf, L.L.C., 49 So. 3d 1198, 1200-01 (Ala. 2010)
(citing Ex parte Cupps, 782 So. 2d [772,] 775 [(Ala. 2000)]).
Nevertheless, the right to a jury trial is not absolute in that 'no
constitutional or statutory provision prohibits a person from
waiving his or her right to trial by jury.' Mall, Inc. v. Robbins,
412 So. 2d 1197, 1199 (Ala. 1982).
"... In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this Court
articulated three factors to consider in evaluating whether to
enforce a contractual waiver of the right to trial by jury: (1)
8
1200537
whether the waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is equal; and (3)
whether the waiver was intelligently and knowingly made. ...
"....
"In Ex parte AIG Baker Orange Beach Wharf, L.L.C., [49
So. 3d 1198 (Ala. 2010)], this Court enforced broad jury-trial
waiver language in a contract and ordered the trial court to
grant the petitioner's motion to strike the jury demand. This
Court recognized a distinction between contractual jury
waivers that are limited to claims 'arising from' the
agreement, which are to be narrowly constru[ed] and which
exclude claims that do not require a reference to or
construction of the underlying contract for resolution, and
broader waiver provisions that cover claims 'arising out of or
relating to' a contract. The AIG Baker Court relied upon
analogous cases dealing with arbitration clauses, such as
Selma Medical Center v. Manayan, 733 So. 2d 382 (Ala. 1999)
(holding that arbitration clause covering any dispute
'concerning any aspect of' agreement between doctor and
hospital required arbitration of fraudulent-inducement claim);
Beaver Construction Co. v. Lakehouse, L.L.C., 742 So. 2d 159,
165 (Ala. 1999) (noting that ' "relating-to" language has been
held to constitute a relatively broad arbitration provision');
General Motors Corp. v. Stokes, 850 So. 2d 1239 (Ala. 2002)
(broadly interpreting provision in dealer-relocation agreement
calling for arbitration of claims 'arising under or relating to'
agreement and negotiation thereof to include claims that
manufacturer fraudulently induced dealer to enter into
agreement); Ex parte Gates, 675 So. 2d 371 (Ala. 1996)
(holding that clause in mobile-home sales contract providing
for arbitration of claims 'arising from or relating to' the
contract required arbitration of buyers' claims that defendants
had misrepresented or concealed facts to induce them to enter
9
1200537
into agreement because claims were asserted 'in connection
with' contract); and Ex parte Lorance, 669 So. 2d 890 (Ala.
1995) (holding that clause in doctor's professional-services
contract requiring arbitration of any controversy or claim
'arising out of or relating to' contract covered doctor's claim
that he was fraudulently induced to enter into agreement)."
Ex parte BancorpSouth Bank, 109 So. 3d at 166-68. In this case, no issue
has been raised as to the enforceability of the jury-waiver provision at
issue.3 Thus, the only real question before this Court is whether Hall-
Smith's claims against the law firm were "related to" the agreement or her
employment with the law firm.
Hall-Smith asserted two counts against the law firm -- count one,
which alleged a claim of negligence and/or wantonness, and count five,
which alleged a claim of the tort of outrage/intentional infliction of
emotional distress. In her response to the motion to strike, Hall-Smith
conceded that she had waived her right to a jury trial as to her negligence
and/or wantonness claim against the law firm. Therefore, it is clear that
3Hall-Smith did not raise any challenge to the enforceability of the
jury-waiver provision in her response to the motion to strike that she filed
in the trial court. Also, as noted previously, she has not filed a response
to the mandamus petition.
10
1200537
the trial court erred when it denied the motion to strike Hall-Smith's jury
demand as to the negligence and/or wantonness claim against the law
firm.
The next question is whether the trial court erred when it denied the
motion to strike as to Hall-Smith's tort-of-outrage/intentional-infliction-of-
emotional-distress claim against the law firm. In her response to the
motion to strike, Hall-Smith made the general assertion that, with one
exception, none of the claims she made against the law firm in count five
of her complaint were in any way related to her employment. However,
she concedes that, "to the extent Count Five states a claim against the
Firm related to her termination from employment, she has waived her
right to a jury trial." In the factual-allegations section of her amended
complaint, Hall-Smith set forth allegations about Taylor's conduct
directed toward her that allegedly took place during the course of her
employment with the law firm. Additionally, in that section of her
amended complaint, Hall-Smith went on to allege:
"14. At all material times, [the law firm] owed [Hall-
Smith] a duty to adequately train, supervise and/or monitor
11
1200537
[Taylor] to protect her, as an employee of the firm, against the
type of conduct alleged herein.
"15. At all material times, [the law firm] breached said
duty owed to [Hall-Smith] proximately causing her ongoing
damages including humiliation, fear, mental anguish and the
loss of employment."
(Emphasis added.) Further, in count five of her amended complaint, Hall-
Smith asserted:
"25. The Plaintiff adopts and re-alleges each paragraph
set forth above as if fully set forth herein.
"26. The above-described conduct on the part of the [the
law firm and Taylor] was extreme and outrageous with an
intent to cause and/or disregard of the substantial probability
of causing severe emotional distress.
"27. The above-described conduct on the party of the
Defendants was so outrageous in character and extreme in
degree as to go beyond all possible bounds of decency and is
regarded as intolerable in a civilized community such that no
reasonable person could be expected to endure it.
"The above-described conduct on the part of the
Defendants constitutes outrage and/or intentional infliction of
emotional distress."
When reading Hall-Smith's amended complaint as a whole, it is clear that
her entire tort-of-outrage/intentional-infliction-of-emotional-distress claim
relates to Hall-Smith's employment with the law firm. Therefore, the trial
12
1200537
court also erred when it refused to strike Hall-Smith's jury demand as to
her claim against the law firm alleging the tort of outrage/intentional
infliction of emotional distress.
Conclusion
Because Hall-Smith's claims against the law firm were related to her
employment with the law firm, she waived her right to a jury trial as to
those claims. Therefore, the trial court erred when it denied the
defendants' motion to strike Hall-Smith's demand for a jury trial as to her
claims against the law firm. Accordingly, as to Hall-Smith's demand for
a jury trial on her claims against the law firm, we grant the petition for
the writ of mandamus, direct the trial court to vacate its March 22, 2021,
order to the extent that it denies the motion to strike Hall-Smith's
demand for a jury trial on her claims against the law firm, and direct the
trial court to enter an order granting the motion to strike Hall-Smith's
demand for a jury trial on her claims against the law firm.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Mitchell, J., concur.
Shaw and Bryan, JJ., concur in the result.
13
1200537
Bolin, Sellers, Mendheim, and Stewart, JJ., dissent.
14 | September 30, 2021 |
b07e429c-720b-42a0-ab2c-b7c5b4af1ec0 | Ex parte L.F. | N/A | 1200679 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200679
Ex parte L.F. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: L.F. v. Houston County Department of Human
Resources) (Houston Juvenile Court: JU-16-549.02; Civil Appeals :
2190694).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
9ca7ef3d-bc1a-4853-8d93-38fb44b12f55 | Ex parte Jerry Clayton Grider. | N/A | 1200701 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200701
Ex parte Jerry Clayton Grider. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Jerry Clayton Grider v. State
of Alabama) (Jackson Circuit Court: CC-19-781; CC-19-782; CC-19-783;
Criminal Appeals : CR-20-0126).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Parker, C.J. - Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
920c14a9-dbe1-44d6-aea2-3053c7c2408c | Ex parte William Guy Krebs. | N/A | 1200693 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200693
Ex parte William Guy Krebs. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: William Guy Krebs v. Melissa Jo
Krebs) (Shelby Circuit Court: DR-11-900422.01; Civil Appeals : 2190450).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
07a7eb5f-0637-46e9-b816-d8506ffb8c40 | Ex parte John Cooper | N/A | 1200269 | Alabama | Alabama Supreme Court | Rel: September 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200269
____________________
Ex parte John R. Cooper
PETITION FOR WRIT OF MANDAMUS
(In re: William Jeff Hulsey and Traci Bullard
v.
John R. Cooper)
(Morgan Circuit Court, CV-20-900027)
PARKER, Chief Justice.
John R. Cooper, the director of the Alabama Department of
Transportation ("ALDOT"), seeks a writ of mandamus directing the
1200269
Morgan Circuit Court to dismiss an action commenced against him by
William Jeff Hulsey and Traci Bullard. Because Hulsey's and Bullard's
claims were based on Cooper's official duties as director, he was entitled
to a dismissal based on State immunity, and we grant his petition.
I. Facts
Hulsey was injured when he lost control of his vehicle during a
winter weather event. Hulsey and Bullard, his common-law wife, sued
Cooper, individually, for damages: Hulsey based on personal injury,
Bullard based on loss of consortium. Hulsey and Bullard alleged that
ALDOT employees made the road surface slick by applying an improper
mixture of anti-icing brine and diesel fuel to it, then aggravated the
slickness by flushing the road with water, then failed to warn drivers and
close the road. Hulsey and Bullard also alleged that Cooper failed to
supervise and train ALDOT employees and to ensure that they followed
ALDOT policies. Cooper moved to dismiss the complaint, arguing that
these claims were barred by State immunity and State-agent immunity.
The circuit court denied Cooper's motion, and he seeks mandamus review.
II. Standard of Review
2
1200269
"A writ of mandamus will be issued only when (1) the petitioner has
a clear legal right to it, (2) a respondent has refused to perform a duty, (3)
there is no other adequate remedy, and (4) the petitioned court has
jurisdiction." Ex parte Boone Newspapers, Inc., [Ms. 1190995, Feb. 12,
2021] ___ So. 3d ___, ___ (Ala. 2021). A trial court's denial of a motion to
dismiss grounded on immunity is reviewable by mandamus. Ex parte
Branch, 980 So. 2d 981, 984 (Ala. 2007). And we review such a denial de
novo; that is, we accept the complaint's allegations as true and determine
whether the plaintiff may possibly prevail. Ex parte Burkes Mech., Inc.,
306 So. 3d 1, 3 (Ala. 2019).
III. Analysis
Under § 14 of the Alabama Constitution, "the State of Alabama shall
never be made a defendant in any court of law or equity." Art. I, § 14, Ala.
Const. 1901 (Off. Recomp.). Section 14 is a jurisdictional bar to claims
against the State itself, State agencies, and State officers and employees
who are sued for damages in their official capacities. Ex parte Alabama
Dep't of Transp., 985 So. 2d 892, 894, 895 (Ala. 2007); Ex parte Moulton,
116 So. 3d 1119, 1130-31 (Ala. 2013). In particular, State officers and
3
1200269
employees "are immune from suit when the action against them is, in
effect, one against the State." Barnhart v. Ingalls, 275 So. 3d 1112, 1122
(Ala. 2018).
In Barnhart, this Court held that a purported individual-capacity
claim is, in effect, one against the State when the duty allegedly breached
is owed solely because of the officer or employee's official position. Id. at
1125-27. In applying this test to the facts of Barnhart, this Court held that
the plaintiffs' backpay claims against State officers individually were
actually claims against the State because the officers' duty to apply wage
laws existed solely because of their official positions. Id. at 1126.
Similarly, in Anthony v. Datcher, 321 So. 3d 643, 653 (Ala. 2020), this
Court held that damages claims against a State educational official
individually for misclassifying positions of college instructors for salary
purposes were actually barred official-capacity claims because the official's
duty to properly classify the positions existed only because of her official
position. Most recently, in Meadows v. Shaver, [Ms. 1180134, Nov. 20,
2020] ___ So. 3d ___, ___ (Ala. 2020), a plurality of this Court determined
that claims against a circuit clerk individually for failing to transmit a
4
1200269
criminal sentence-status transcript were, in substance, official-capacity
claims because the clerk's alleged duties relating to the transcript existed
only because of her position.
Here, Cooper argues that the duties he allegedly breached existed
solely because of his official position as director of ALDOT. Hulsey and
Bullard's complaint alleged that Cooper owed the following duties:
- "to keep the roadway in repair and in a reasonably safe
condition"
- "to not act wilfully, maliciously, fraudulently, in bad faith,
beyond [his] authority, and/or under a mistaken interpretation
of the law while engaging in [his] ALDOT employment duties"
- "to follow ALDOT policies, procedures, regulations, and
guidelines relating to the hiring, training, supervision, and
retention of employees"
- "to ensure that [ALDOT] policies were being followed by
ALDOT employees"
Cooper is correct that each of these alleged duties existed only
because he was the director of ALDOT. Apart from his official position,
Cooper owed no duty to keep the roadway in repair, to properly perform
ALDOT employment duties, to follow ALDOT policies, or to ensure that
ALDOT policies were being followed by ALDOT employees. Thus, Hulsey's
5
1200269
and Bullard's claims against Cooper were actually official-capacity claims;
they were, in effect, claims against the State that were barred by State
immunity.
Hulsey and Bullard argue that the claims were not barred by State
immunity because, they assert, Cooper sought State immunity "based
solely on the title of his office, rather than the nature of the suit."
However, as discussed above, Cooper's allegedly breached duties existed
solely because of his official position. Under Barnhart and its progeny,
that fact entitled Cooper to State immunity based on the "nature of [the]
claims," Barnhart, 275 So. 3d at 1126 (emphasis omitted); see Anthony,
321 So. 3d at 653; Meadows, ___ So. 3d at ___, not merely the " ' "character
of the office," ' " Barnhart, 275 So. 3d at 1122 (citations omitted).
Hulsey and Bullard also contend that the complaint's "allegations ...
allow[ed] [their] claims to circumvent [State] immunity." They appear to
be referring to the allegations that Cooper "acted willfully, maliciously,
fraudulently, in bad faith, beyond [his] authority, and/or under a mistaken
interpretation of the law." But those allegations related to State-agent
immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) (plurality
6
1200269
opinion),1 not State immunity under § 14. As clarified in Moulton,
allegations that a State officer or employee acted willfully, maliciously,
fraudulently, in bad faith, beyond his authority, or under a mistaken
interpretation of the law do not circumvent State immunity under § 14
when the claim is, in effect, one against the State (i.e., actually an official-
capacity claim). 116 So. 3d at 1138-41. And as discussed above, the claims
here were in substance official-capacity claims. Thus, the complaint's
allegations did not circumvent State immunity.
Finally, Hulsey and Bullard argue that, under DeStafney v.
University of Alabama, 413 So. 2d 391, 395 (Ala. 1981), a personal-injury
claim based on negligence of a State officer or employee is not barred by
State immunity if the officer or employee was not exercising a
discretionary function. Hulsey and Bullard point out that Cooper made no
argument that he was exercising a discretionary function. Again, Hulsey
and Bullard conflate State immunity with State-agent immunity. In
1A majority of this Court adopted the Cranman plurality's
restatement of State-agent-immunity law in Ex parte Butts, 775 So. 2d
173, 177-78 (Ala. 2000).
7
1200269
DeStafney, which was decided before Cranman's restatement of State-
agent-immunity law, this Court applied a discretionary-function analysis,
derived from the Restatement (Second) of Torts § 895D, to claims asserted
against a State agent individually. 413 So. 2d at 393-96. DeStafney's
discretionary-function analysis has now been superseded by the Cranman
restatement. See Cranman, 792 So. 2d at 402-04 (discussing DeStafney's
analysis within Cranman's summary of prior State-agent-immunity
jurisprudence before articulating Cranman's restatement). And as noted
above, that restatement applies only to State-agent immunity, not State
immunity.
Because Hulsey's and Bullard's claims against Cooper were, in
effect, official-capacity claims against the State, they were not claims
against him individually. Thus, we need not address the parties'
arguments regarding whether Cooper was entitled to State-agent
immunity under Cranman.
IV. Conclusion
Hulsey's and Bullard's claims against Cooper were barred by State
immunity. Accordingly, we grant Cooper's petition and issue a writ of
8
1200269
mandamus directing the circuit court to dismiss Hulsey's and Bullard's
claims.
PETITION GRANTED; WRIT ISSUED.
Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Sellers, J., concurs in the result.
9 | September 30, 2021 |
324943a8-079f-46a6-91aa-fbed6eb67eda | Ex parte Earnest Walker. | N/A | 1200538 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200538
Ex parte Earnest Walker. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Earnest Walker v. State of
Alabama) (Mobile Circuit Court: CC-04-3797.63; Criminal Appeals :
CR-19-0437).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
727cb890-54b0-4ca9-9aad-2c33f25355aa | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200104 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200104
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Stratcap
Investments, Inc. v. Michael Thomas Scoggins, as special Conservator for
the estates of Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900099).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Denied. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | September 3, 2021 |
09e00018-b01d-44ac-a101-222f25116be4 | Amy Cauthen Marshall v. Alabama State Bar | N/A | 1200084 | Alabama | Alabama Supreme Court | Rel: September 3, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200073
____________________
Alabama State Bar
v.
Christopher M. Kaminski
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200074
____________________
Alabama State Bar
v.
Amy C. Marshall
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
____________________
1200083
____________________
Christopher Mark Kaminski
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1100)
____________________
1200084
____________________
Amy Cauthen Marshall
v.
Alabama State Bar
Appeal from Disciplinary Board of Alabama State Bar
(ASB-2019-1130)
SHAW, Justice.1
1These cases were previously assigned to another Justice; they were
reassigned to Justice Shaw.
2
1200073; 1200074; 1200083; 1200084
In these consolidated appeals, the Alabama State Bar ("the Bar")
appeals from an order of Panel II of the Disciplinary Board of the Alabama
State Bar ("the Board") suspending both Christopher Mark Kaminski and
Amy Cauthen Marshall from the practice of law. Kaminski and Marshall
also each cross-appeal the Board's order. We remand the matters with
directions.
Facts and Procedural History
The material facts in these matters are undisputed: Kaminski,
formerly a judge of the Coffee District Court, and Marshall, an Enterprise
attorney who routinely appeared before the Coffee District Court, secretly
engaged in an extramarital affair, during which Kaminski admittedly both
appointed Marshall as counsel in pending cases and took judicial action
in cases in which Marshall appeared as counsel of record, without
disclosing their relationship to the parties. During the proceedings below,
Kaminski and Marshall married each other and Marshall assumed
Kaminski's last name. To avoid confusion, this opinion will refer to
Marshall by her prior surname, under which the disciplinary matter
against her was originally initiated and by which she is consistently
3
1200073; 1200074; 1200083; 1200084
referred to in the record. Kaminski and Marshall waived the filing of
formal charges against them and entered "blind" pleas in the disciplinary
matters initiated against them by the Bar.2
At the ensuing disciplinary hearing, the Bar recounted the
misconduct to which Kaminski and Marshall had previously pleaded
2Specifically, Kaminski's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 8.4(a) [regarding the
violation, or the attempt to violate the Rules of Professional
Conduct, or knowingly assisting or inducing another to do so],
(d) [regarding engaging in conduct prejudicial to the
administration of justice,] and (g) [regarding engaging in
conduct adversely reflecting on the lawyer's fitness to practice
law], Alabama Rules of Professional Conduct."
Marshall's guilty plea stated:
"I voluntarily waive the filing of formal charges and enter
a plea of guilty to violating Rules 1.7(b) [prohibiting a lawyer's
representation of a client if the representation may be
materially limited by the lawyer's own interest, unless the
client consents after consultation], 8.4(d) [regarding engaging
in conduct prejudicial to the administration of justice], (f)
[prohibiting knowingly assisting a judge in conduct that
violates the Canons of Judicial Ethics,] and (g) [regarding
engaging in conduct adversely reflecting on the lawyer's fitness
to practice law], Alabama Rules of Professional Conduct."
4
1200073; 1200074; 1200083; 1200084
guilty; presented authorities from other states involving allegedly
comparable conduct and standards similar to the Alabama Standards for
Imposing Lawyer Discipline ("the Standards"), each of which resulted in
disbarment or a minimum of two years' suspension; and cited the
particular Standards that it maintained applied in determining
appropriate punishment for the acknowledged misconduct in these
matters.3
Thereafter, Kaminski and Marshall both testified before the Board,
called numerous character witnesses, and presented other evidence.
Primarily, their evidence related that both Kaminski and Marshall were
remorseful for their misconduct; that both were assets to the legal
community within Coffee County; that Kaminski had played only a
limited role in Marshall's appointments and the approval of her related
fee declarations; that Kaminski never showed Marshall any discernible
favoritism; and that both Kaminski, who was required to resign from the
bench as a result of the above-described misconduct, and Marshall had,
3These included Standards 4.3, 4.5, 5.1, 5.2, and 7.0.
5
1200073; 1200074; 1200083; 1200084
before the institution of the disciplinary proceedings, already experienced
"public-sham[ing]" within their local media and community when their
relationship was disclosed.
In summation, the Bar reiterated its belief regarding the applicable
discipline range and argued the following regarding aggravating
circumstances:
"[A]s far as aggravating circumstances, [the Bar would] like
the Board to consider the following: Dishonest or selfish
motive, a pattern of misconduct, and multiple offenses. This
happened over a long period of time. This was not a one-time
thing. It happened over, at least by their own testimony, a
five- or six-month period."
It further argued that the negative publicity that Kaminski and Marshall
cited as a mitigating circumstance actually amounted to evidence of
damage to the integrity of the legal profession and the legal system in the
eyes of the public resulting from their misconduct. The Bar recommended
a minimum of a three-year suspension for both Kaminski and Marshall.
The Board's subsequent order suspended Kaminski from the practice
of law for 180 days and suspended Marshall from the practice of law for
90 days, with Marshall's suspension to begin immediately upon the entry
6
1200073; 1200074; 1200083; 1200084
of the order and Kaminski's suspension to begin 91 days after entry of the
order. In its order, the Board recounted the specific rules of the Alabama
Rules of Disciplinary Procedure that Kaminski and Marshall were charged
with violating and also detailed, without reference to any supporting
Standard on which the Board relied, the Board's determination of
suspension as the "appropriate discipline."
The order included, without reference to any evidentiary finding on
which the Board relied, the Board's conclusions as to the existence of each
individual aggravating and mitigating circumstance prescribed in
Standard 9.0 and a corresponding indication that each circumstance
either did or did not exist for Kaminski or for Marshall. More specifically,
the Board found the existence of only two aggravating circumstances:
that both Kaminski and Marshall had exhibited dishonest or selfish
motives and that each possessed substantial experience in the practice of
law. The Board found the existence of the following mitigating
circumstances: that neither Kaminski nor Marshall had a prior
disciplinary record; that both had made a timely, good-faith effort to
rectify any consequences of their misconduct; that both had provided full
7
1200073; 1200074; 1200083; 1200084
disclosure and cooperation to the Board during the disciplinary
proceedings; and that both had exhibited remorse for their misconduct.
The Bar appealed, and Kaminski and Marshall cross-appealed.
Standard of Review
" 'The standard of review applicable to an
appeal from an order of the Disciplinary Board is
"that the order will be affirmed unless it is not
supported by clear and convincing evidence or
misapplies the law to the facts." Noojin v. Alabama
State Bar, 577 So. 2d 420, 423 (Ala.1990), citing
Hunt v. Disciplinary Board of the Alabama State
Bar, 381 So. 2d 52 (Ala.1980).'
"Davis v. Alabama State Bar, 676 So. 2d 306, 308 (Ala.1996)."
Cooner v. Alabama State Bar, 59 So. 3d 29, 37 (Ala. 2010).
Discussion
On appeal, the Bar argues that the Board's discipline was so lenient
as to be "manifestly unjust" under the Standards, which, it argues,
mandate, at a minimum, suspensions lasting several years. In their cross-
appeals, Kaminski and Marshall argue that the Board erred, on various
grounds, in imposing their respective terms of suspension and in failing,
instead, to impose lesser punishments under the applicable Standards.
8
1200073; 1200074; 1200083; 1200084
Both the Bar and Kaminski and Marshall, in support of their respective
claims of error, challenge certain of the Board's findings as to the
existence of aggravating and mitigating circumstances as clearly
erroneous. See Tipler v. Alabama State Bar, 866 So. 2d 1126 (Ala. 2003)
(explaining that the "clearly erroneous" standard of review applies to the
findings of fact of the Board), and Alabama State Bar Ass'n v. Dudley, 95
So. 3d 777, 779-80 (Ala. 2012) (observing that a finding is "clearly
erroneous" when, although there is evidence to support it, this Court,
based on the evidence, is left with the definite and firm conviction that a
mistake has been made).
Rule 4.2(b)(6), Ala. R. Disc. P., provides, in part:
"The Disciplinary Hearing Officer shall make written findings
of fact and conclusions of law as directed by the Disciplinary
Board, which shall be captioned 'Report and Order.' ....
"....
"(C) The Report and Order shall contain:
"(i)
A
finding
of
fact
and
conclusion of law as to each allegation
of misconduct, which, upon acceptance
by the Disciplinary Board, shall enjoy
the same presumption of correctness as
9
1200073; 1200074; 1200083; 1200084
the judgment of a trier of fact in a
nonjury civil proceeding in which
evidence has been presented ore tenus;
"(ii) A finding as to whether the
respondent attorney is guilty or not
guilty of the misconduct charged; [and]
"(iii) A finding as to the discipline
to be imposed, with reference, where
appropriate, to the Alabama Standards
for Imposing Lawyer Discipline."4
(Emphasis added.)
All parties take issue with the Board's findings as to the existence
of various aggravating and mitigating circumstances. The Bar contends
that the Board erroneously failed to find additional aggravating
circumstances and also improperly found the existence of certain
mitigating circumstances. Both Kaminski and Marshall contend that the
Board's findings as to the existence of each aggravating circumstance were
correct, but they assert that the Board erroneously failed to find the
4Although findings and conclusions regarding each allegation of
misconduct and guilt are absent from the Board's order, presumably the
Board determined that such findings and conclusions were unnecessary
in light of the guilty pleas.
10
1200073; 1200074; 1200083; 1200084
existence of at least two additional mitigating circumstances that, they
say, applied to each of them. The Bar also maintains that the Board's
order is legally insufficient either to demonstrate the relation of the
discipline imposed to the allegations of misconduct to which Kaminski and
Marshall pleaded guilty and/or to allow for meaningful appellate review.
More specifically, it contends that, in disciplining Kaminski and Marshall,
the Board failed to consider, to follow, or to cite to the relevant Standards
supporting that discipline.
With regard to Bar disciplinary proceedings, this Court has two
distinct roles: one stemming from our independent duties arising from
rules authorizing appellate review of orders entered in disciplinary
proceedings and one from our inherent authority to supervise the Bar. In
Simpson v. Alabama State Bar, 294 Ala. 52, 56, 311 So. 2d 307, 309
(1975), this Court stated that the Board of Bar Commissioners, which
appoints the members of the Board, see Rule 4, Ala. R. Disc. P., "was
created in aid of this [C]ourt," which "retains the power to ... inquire into
the merits of any disciplinary proceeding, and to take any action it sees fit
in such matters." (Emphasis added.) Further, this Court "in any case of
11
1200073; 1200074; 1200083; 1200084
suspension or disbarment from practice ... may ... inquire into the merits
of the case and take any action agreeable to its judgment." § 34-3-43(a)(5),
Ala. Code 1975.
Based on the record before us and considering the evidence adduced
in the underlying disciplinary proceedings, it is unclear to this Court how
-- or more precisely based on what evidence -- the Board could have
reached some of its findings regarding the existence or nonexistence of
certain aggravating and mitigating circumstances. More critical than the
absence of specific underlying factual findings, though the Board's order
also omits, in "determin[ing] the appropriate discipline in this matter,"
reference to any supporting Standards pursuant to which that discipline
was allegedly imposed -- as Rule 4.2(b)(6)(C)(iii) specifically requires. The
Board had an independent duty to comply with Rule 4.2, and this Court,
which is called upon to approve the Board's actions, is unable to do so in
the present matters without either further clarification or additional
information. The indicated omissions prevent this Court from engaging
in the review necessary to determine whether each unexplained finding
enumerated by the Board and recounted above is " ' "supported by clear
12
1200073; 1200074; 1200083; 1200084
and convincing evidence" ' " or to consider, based on those findings, the
propriety of the Board's disciplinary sanctions. Cooner, 59 So. 3d at 37.
This Court's precedent suggests that remanding the matters for the entry
of an order containing the necessary findings is an appropriate remedy in
such cases. See Cooner, 59 So. 3d at 39. See also Cooner v. Alabama
State Bar, 145 So. 3d 1 (Ala. 2013) (remanding a second time to address
similar deficiencies). Cf. Alabama State Bar v. R.G.P., 988 So. 2d 1005
(Ala. 2008) (vacating an order of the Board of Disciplinary Appeals of the
Alabama State Bar because the order did not provide the basis for
reversing a disciplinary decision of the Board).
Conclusion
The parties have raised issues regarding whether the Board erred
in its findings as to the existence of aggravating and mitigating
circumstances. Because the Board's order does not provide a sufficient
explanation of its holdings so as to allow meaningful review under Rule
12(f), Ala. R. Disc. P., and § 34-3-43(a)(5), Ala. Code 1975, we remand the
matters for the Board to issue a new order that specifically provides, as to
each finding by the Board concerning the existence of an aggravating or
13
1200073; 1200074; 1200083; 1200084
mitigating circumstance, the evidentiary basis on which the Board relied
in reaching its conclusion and that references, as provided in Rule
4.2(b)(6)(C)(iii), the supporting Standards on which the Board relied in
determining that the terms of suspension imposed were appropriate. See
Cooner, 59 So. 3d at 39. The Board shall make due return to this Court
within 42 days of the issuance of this opinion.
1200073 -- REMANDED WITH DIRECTIONS.
1200074 -- REMANDED WITH DIRECTIONS.
1200083 -- REMANDED WITH DIRECTIONS.
1200084 -- REMANDED WITH DIRECTIONS.
Parker, C.J., and Bolin, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Wise, Bryan, and Sellers, JJ., concur in the result.
14 | September 3, 2021 |
17228889-fc21-4ae0-8232-597cf56e5774 | Ex parte R.S.F. | N/A | 1200661 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200661
Ex parte R.S.F. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: R.S.F. v. Jefferson County Department of
Human Resources) (Jefferson Juvenile Court: JU-17- 805.03; Civil Appeals :
2200115).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
67bc519b-d286-4899-baac-49e881f845b4 | Dellinger, et al. v. Flemming, et al. | N/A | 1190430 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1190430
Robbie Dellinger, Joe S. Kimbrough, and Steve Kimbrough, LLC
v. Bryant Bank, Audrey Flemming, and Michael Francis Flemming III
(Appeal from Jefferson Circuit Court: CV-18-903544).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 12, 2021:
Application Overruled. No Opinion. Mitchell, J. -
Parker, C.J., and
Shaw, Bryan, and Mendheim, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on August 13, 2021:
Appeal Dismissed. Mitchell, J. -
Parker, C.J., and Shaw, Bryan, and
Mendheim, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
b1acb2ad-6ee0-47f6-adab-199d131922ed | Ex parte R.S.F. | N/A | 1200667 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200667
Ex parte R.S.F. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: R.S.F. v. Jefferson County Department of
Human Resources) (Jefferson Juvenile Court: JU-17- 807.03; Civil Appeals :
2200116).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
ce0529de-c087-458b-828d-9830397e8e00 | Ex parte Jane Doe, individually and as mother and next friend of her minor children, Judy Doe and John Doe. | N/A | 1191073 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1191073
_________________________
Ex parte Jane Doe, individually and as mother and next friend
of her minor children, Judy Doe and John Doe
PETITION FOR WRIT OF MANDAMUS
(In re: Jane Doe, individually and as mother and next friend of
her minor children, Judy Doe and John Doe
v.
Campus Evolution Villages, LLC, et al.)
(Tuscaloosa Circuit Court, CV-20-900175)
WISE, Justice.
1191073
Jane Doe ("Doe"), individually and as mother and next friend of her
minor children, Judy Doe and John Doe, petitions this Court for a writ of
mandamus directing the Tuscaloosa Circuit Court to vacate its August 18,
2020, order staying all discovery in this case. We grant the petition and
issue the writ.
Facts and Procedural History
On August 25, 2019, Doe was dropping off her children to stay with
a friend at the Campus Evolution Villages apartments in Tuscaloosa. Doe
alleges that, while she was in the common area of the apartments, Tereza
Demone Jones assaulted her and raped her in front of her children and
then fled the scene. Jones was later arrested and is being prosecuted by
the State of Alabama for first-degree rape, a violation of § 13A-6-61(a)(1),
Ala. Code 1975.
On February 14, 2020, Doe sued Campus Evolution Villages, LLC;
Pinnacle Campus Living, LLC ("Pinnacle"); Pinnacle Property
Management Services, LLC; Jones; and various fictitiously named
defendants in the Tuscaloosa Circuit Court. On April 23, 2020, Doe
amended the complaint to dismiss Pinnacle Property Management
2
1191073
Services, LLC, and Campus Evolution Villages, LLC, without prejudice
and to substitute CEV Tuscaloosa, LLC; Signal 88, LLC; Gulf South
Security Solutions, LLC ("Gulf South"); and CEV Tuscaloosa, LP, for
fictitiously named defendants. The amended complaint included counts
alleging assault and battery, invasion of privacy, and the tort of outrage
against Jones and counts alleging negligence and/or wantonness and
negligence and/or wantonness based on a premises-liability theory against
CEV Tuscaloosa, LLC, CEV Tuscaloosa, LP, Pinnacle, Signal 88, and Gulf
South.
On July 31, 2020, Doe filed a motion for the entry of a default
against Jones. She alleged that the summons, complaint, and amended
complaint had been served on Jones on June 16, 2020, and that he had not
answered or otherwise responded.
On August 13, 2020, Gulf South and Pinnacle filed a joint motion to
stay the civil action pending the outcome of the criminal proceeding
against Jones. They alleged that no discovery had been conducted in the
case; that Doe and the defendants would need to conduct discovery
relating to the incident, including taking the deposition of Jones; and that,
3
1191073
because any such deposition would involve questions relating to the
matters at issue in the criminal proceeding, conducting discovery in this
case must be stayed until the criminal proceeding is concluded. Gulf
South and Pinnacle also alleged that this civil proceeding and the criminal
proceeding against Jones are parallel; that Jones's privilege against self-
incrimination under the Fifth Amendment to the United States
Constitution would be threatened if he is called for a deposition in this
case while the criminal proceeding is still pending; and that the factors in
the balancing test set forth in Ex parte Baugh, 530 So. 2d 238, 244 (Ala.
1988), and Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003), weigh in
favor of allowing the criminal proceeding to be concluded before
conducting discovery in this proceeding.
On August 18, 2020, the trial court granted the motion to stay. On
that same date, it denied Doe's motion for the entry of a default against
Jones.
On August 24, 2020, Doe filed a motion to reconsider both orders and
asked the trial court to enter an order allowing her to pursue discovery
and permitting the circuit clerk to enter a default against Jones. On
4
1191073
September 2, 2020, the trial court denied Doe's motion to reconsider. This
petition followed.
Standard of Review
"A petition for a writ of mandamus is a proper method by
which to challenge a trial court's decision on a motion to stay
a civil proceeding when a party to that proceeding is the
subject of a criminal investigation. See, e.g., Ex parte Rawls,
953 So. 2d 374 (Ala. 2006); Ex parte Weems, 711 So. 2d 1011
(Ala. 1998).
" ' "A writ of mandamus is an
extraordinary remedy that is available
when a trial court has exceeded its
discretion. Ex parte Fidelity Bank, 893
So. 2d 1116, 1119 (Ala. 2004). A writ of
mandamus is 'appropriate when the
petitioner can show (1) a clear legal
right to the order sought; (2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do
so; (3) the lack of another adequate
remedy; and (4) the properly invoked
jurisdiction of the court.' Ex parte BOC
Group, Inc., 823 So. 2d 1270, 1272 (Ala.
2001)."
" 'Ex parte Antonucci, 917 So. 2d 825, 830 (Ala.
2005).'
"Rawls, 953 So. 2d at 377. '[T]he purpose of our review is to
determine only if the petitioner has shown that the trial court
exceeded the discretion accorded it in determining whether to
5
1191073
grant the requested stay.' Ex parte Antonucci, 917 So. 2d 825,
830 (Ala. 2005)."
Ex parte McDaniel, 291 So. 3d 847, 851 (Ala. 2019).
Discussion
Doe argues that the trial court exceeded its discretion by granting
Gulf South and Pinnacle's motion to stay based on speculation that Jones
might assert his Fifth Amendment privilege against self-incrimination in
response to discovery, or questioning he might face in a deposition, that
might be served on him in this case. Specifically, she contends that Gulf
South and Pinnacle "cannot assert the Fifth Amendment for Jones and
[that] they failed to present evidence that Jones had asserted or would
assert his Fifth Amendment right against self-incrimination in response
to discovery that might, at some point in the future, be served on him in
this case, so as to justify the stay imposed by the trial court." We agree
that Gulf South and Pinnacle cannot assert the Fifth Amendment on
behalf of Jones.
6
1191073
In Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006), this Court set
forth the following method for determining whether a stay is warranted
when a Fifth Amendment privilege against self-incrimination is invoked:
"This Court stated in Ex parte Baugh, 530 So. 2d 238,
241 (Ala. 1988):
" 'Under the Fifth Amendment to the Constitution
of the United States, "no person ... shall be
compelled in any criminal case to be a witness
against
himself."
The
privilege
against
self-incrimination must be liberally construed in
favor of the accused or the witness, Hoffman v.
United States, 341 U.S. 479, 71 S. Ct. 814, 95 L.
Ed. 1118 (1951), and is applicable not only to
federal proceedings but also to state proceedings,
Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.
Ed. 2d 653 (1964). "The fact that the privilege is
raised in a civil proceeding rather than a criminal
prosecution does not deprive a party of its
protection." Wehling v. Columbia Broadcasting
System, 608 F.2d 1084 (5th Cir. 1979), citing with
approval Lefkowitz v. Cunningham, 431 U.S. 801,
9[7] S. Ct. 2132, 53 L. Ed. 2d 1 (1977); McCarthy v.
Arndstein, 266 U.S. 34, 45 S. Ct. 16, 69 L. Ed. []
158 (1924).'
"The United States Constitution, however, does not
mandate that under all circumstances the civil proceedings in
which the privilege against self-incrimination is asserted be
stayed; whether to stay those proceedings is within the trial
court's discretion.
7
1191073
" ' While the Constitution does not require a
stay of civil proceedings pending the outcome of
potential criminal proceedings, a court has the
discretion to postpone civil discovery when "justice
requires" that it do so "to protect a party or persons
from annoyance, embarrassment, oppression, or
undue burden or expense." Rule 26(c), Ala. R. Civ.
P.'
"Ex parte Coastal Training Inst., 583 So. 2d 979, 980-81 (Ala.
1991).
"In the present case, three issues must be addressed to
determine if a stay in the civil ... proceedings based on Fifth
Amendment concerns in a pending criminal action is
warranted: (1) whether the civil proceeding and the criminal
proceeding are parallel, see Ex parte Weems, 711 So. 2d 1011,
1013 (Ala. 1998); (2) whether the moving party's Fifth
Amendment protection against self-incrimination will be
threatened if the civil proceeding is not stayed, see Ex parte
Windom, 763 So. 2d 946, 950 (Ala. 2000); and (3) whether the
requirements of the balancing test set out in Ex parte Baugh,
530 So. 2d at 244, and Ex parte Ebbers, 871 So. 2d 776, 789
(Ala. 2003), are met."
953 So. 2d at 378.
Although the parties dispute whether this civil proceeding and the
criminal proceeding against Jones are parallel, we need not resolve that
dispute because the issue as to who could properly file the motion for a
stay based on Fifth Amendment principles is dispositive in this case.
8
1191073
Jones, the only defendant against whom criminal charges have been filed
regarding the underlying incident, had not filed an appearance in this civil
action and had not invoked his Fifth Amendment privilege against self-
incrimination when Gulf South and Pinnacle filed their motion for a stay.
Instead, Gulf South and Pinnacle, which are corporations, filed the motion
to stay based on speculation that Jones might later invoke his Fifth
Amendment privilege against self-incrimination in response to discovery
in this civil action.1 However,
1We note that Gulf South and Pinnacle attached to their answer to
Doe's petition for a writ of mandamus a document indicating that, months
after Doe filed her petition in this Court, Jones filed in the trial court a
"Notice of Invocation of 5th Amendment Right to Remain Silent in Civil
Case." However,
"[t]his Court has repeatedly recognized that in
'mandamus proceedings, "[t]his Court does not review evidence
presented for the first time" ' in a mandamus petition. [Ex
parte] Ebbers, 871 So. 2d [776,] 794 [(Ala. 2003)] (quoting Ex
parte Ephraim, 806 So. 2d 352, 357 (Ala. 2001)). In reviewing
a mandamus petition, this Court considers 'only those facts
before the trial court.' Ex parte Ford Motor Credit Co., 772 So.
2d 437, 442 (Ala. 2000). Further, in ruling on a mandamus
petition, we will not consider 'evidence in a party's brief that
was not before the trial court.' Ex parte Pike Fabrication, Inc.,
859 So. 2d 1089, 1091 (Ala. 2002)."
9
1191073
"[i]t has long been settled in federal jurisprudence that the
constitutional
privilege
against
self-incrimination
is
'essentially a personal one, applying only to natural
individuals.' It 'cannot be utilized by or on behalf of any
organization, such as a corporation.' United States v. White,
322 U.S. 694, 698, 699 (1944)."
George Campbell Painting Corp. v. Reid, 392 U.S. 286, 288-89 (1968).
Also, as this Court explained in Ex parte Ebbers, 871 So. 2d 776, 801-02
(Ala. 2003):
" 'The Bank defendants enjoy no Fifth Amendment
privilege. See George Campbell Painting Corp. v. Reid, 392
U.S. 286, 288, 88 S. Ct. 1978, 20 L. Ed. 2d 1094 (1968) (the
constitutional privilege against self-incrimination does not
enure to the benefit of any organization such as a corporation).
'The privilege against self-incrimination is available only to
natural persons. Corporations, therefore, are excluded
generally from asserting the privilege.' Charles W. Gamble,
McElroy's Alabama Evidence § 373.01, p. 1594 (5th ed. 1996)."
Gulf South and Pinnacle did not have their own Fifth Amendment
privilege to assert, and they could not assert Fifth Amendment protections
on behalf of Jones. Compare Ex parte Windom, 763 So. 2d 946, 950 (Ala.
Ex parte McDaniel, 291 So. 3d 847, 852 (Ala. 2019). Therefore, we have
not considered that document in reviewing this petition, and we do not
address the issue whether Jones would be entitled to a stay if he
requested one in the trial court.
10
1191073
2000) ("This Court cannot issue a writ of mandamus based upon the
allegation of one party to a civil action that the other party may in that
civil action use the discovery process to interfere with a pending criminal
proceeding."). Therefore, the trial court exceeded its discretion in
granting their motion for a stay.
Conclusion
For the above-stated reasons, we conclude that Doe has established
that she has a clear legal right to relief from the trial court's August 18,
2020, order granting Gulf South and Pinnacle's motion to stay.
Accordingly, we grant Doe's petition for the writ of mandamus and direct
the trial court to vacate the August 18, 2020, order staying this case.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, and
Stewart, JJ., concur.
Mitchell, J., dissents.
11
1191073
MITCHELL, Justice (dissenting).
The hurdle to obtain mandamus relief in this case is high.
Mandamus is an "extraordinary writ" to be issued only when the
petitioner has established a "clear legal right" to the order she seeks. Ex
parte Edgar, 543 So. 2d 682, 684 (Ala. 1989). And it's particularly difficult
to obtain a writ of mandamus concerning a trial court's decision to issue
a stay -- because, under Rule 26(c), Ala. R. Civ. P., trial courts have "the
discretion to stay civil proceedings, to postpone civil discovery, or to
impose protective orders" when "the interests of justice seem to require."
Ex parte Ebbers, 871 So. 2d 776, 787-88 (Ala. 2003); see also Ex parte
Rawls, 953 So. 2d 374, 393 (Ala. 2006) (Nabers, C.J., dissenting) ("The
trial court is in a far better position than is this Court to know the status
of its docket [and] the progress of the case to this point .... There is every
reason to allow the trial court broad discretion in [deciding whether to
issue a stay]."). I do not believe the petitioner cleared the mandamus
hurdle here.
The majority opinion grants mandamus relief based on Rawls. In
that case, this Court established the following three-part test "to
12
2
1191073
determine if a stay in the civil divorce proceedings based on Fifth
Amendment concerns in a pending criminal action is warranted": (1)
whether the civil proceeding and the criminal proceeding are parallel; (2)
whether the moving party's Fifth Amendment privilege against
self-incrimination will be threatened if the civil proceeding is not stayed;
and (3) whether the requirements of the balancing test set out in Ex parte
Baugh, 530 So. 2d 238 (Ala. 1988), and Ebbers are met. Rawls, 953 So. 2d
at 378. Rawls developed the second element of this test based on Ex parte
Windom, 763 So. 2d 946 (Ala. 2000). But a close review of Windom
reveals why I believe it's wrong to apply Rawls here.
In Windom, a defendant in a civil action moved to stay that case
while a criminal action against the plaintiff was pending. Id. at 948. The
trial court denied the motion. Id. at 948. This Court then denied the civil
defendant's petition for mandamus in part because there was no "Fifth
Amendment right against self-incrimination on the part of [the civil
defendant] that could be violated" and the civil plaintiff (and criminal
defendant)
had
"waived
his
Fifth
Amendment
right
against
13
3
1191073
self-incrimination." Id. at 950. In other words, no one's Fifth Amendment
rights were at risk.
Not so here. In this case, Pinnacle Campus Living, LLC ("Pinnacle")
and Gulf South Security Solutions, LLC ("Gulf South"), which are
defendants below, have a legitimate concern that Jones's invocation of his
Fifth Amendment privilege against self-incrimination will impair their
ability to mount a defense to the petitioner's claims. And while Rawls
adopted the second prong of its three-part test based on Windom, Rawls
did not turn on that issue. Instead, this Court held in Rawls that the
moving party, a civil defendant in one action and a criminal defendant in
another, had demonstrated that his Fifth Amendment privilege against
self-incrimination would be threatened if the divorce proceedings were not
stayed. In short, Rawls -- and our cases that come after it -- do not
address how a trial court should consider a corporate defendant's motion
to stay when the assertion of Fifth Amendment rights by a criminal
defendant might impede its ability to obtain discovery essential to its
defense.
14
4
1191073
But this Court's decision in Ebbers does address that issue. In
Ebbers, this Court analyzed the corporate defendants' argument that
another party's invocation of his Fifth Amendment rights would prevent
the corporate defendants from obtaining discovery necessary to defend
themselves. Ebbers, 871 So. 2d at 797. This Court acknowledged that, as
corporate entities, the defendants had no Fifth Amendment rights, but it
did not reject their argument out-of-hand. Instead, this Court evaluated
the defendants' arguments under the "good cause shown" standard of Rule
26(c), noting that trial courts have "broad power … to control the
discovery process." Id. at 802.
In my view, applying Ebbers here would be more consistent with the
broad discretion we typically give trial courts to stay cases or discovery.
Pinnacle and Gulf South's argument is, at bottom, the same as the
corporate defendants' argument in Ebbers. They contend that, without
Jones's testimony, it will be difficult to mount a defense against the
petitioner's claims. And it's easy to see why it would be difficult -- Jones,
the alleged perpetrator, is the central actor in the events that gave rise to
the petitioner's claims of negligence and wantonness against the
15
5
1191073
defendants. For those reasons, I would take the same approach that this
Court took in Ebbers and evaluate whether Pinnacle and Gulf South have
demonstrated good cause for a stay. Given the discretion afforded to the
trial court in making that determination, the trial court's proximity to the
issues and dynamics of the litigation, and the centrality of Jones's alleged
conduct, I cannot conclude that the trial court exceeded its discretion by
granting a stay. Consequently, I would hold that the petitioner has not
demonstrated a clear legal right to the order she seeks and would deny the
petition. I respectfully dissent.
16
6 | July 9, 2021 |
7fe08c6c-a409-4144-80ce-60637c7fc052 | Ex parte Amy Williamson. | N/A | 1200347 | Alabama | Alabama Supreme Court | Rel: September 03, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
_________________________
1200347
_________________________
Ex parte Amy Williamson
PETITION FOR WRIT OF MANDAMUS
(In re: Re.W., by and through her parents and next friends,
Ro.W. and V.W.
v.
Amy Williamson)
(Tuscaloosa Circuit Court, CV-19-901490)
WISE, Justice.
1200347
Amy Williamson, the defendant below, petitions this Court for a writ
of mandamus directing the Tuscaloosa Circuit Court to enter a summary
judgment in her favor based on State-agent immunity. We grant the
petition and issue the writ.
Facts and Procedural History
Twenty-year-old Re.W. was a student in the CrossingPoints
program, a collaborative program between the University of Alabama, the
Tuscaloosa City Board of Education, and the Tuscaloosa County Board of
Education that serves college-aged students with mental disabilities.1
Williamson was a teacher in the program and an employee of the
Tuscaloosa City Board of Education, and Amy Burnett was a
"para-educator" with the program. On March 10, 2015, Williamson and
Burnett transported Re.W. and three other students to various businesses
to submit job applications. While Williamson and Burnett took two
students into a Lowe's home-improvement store to submit applications,
1Pursuant to Rule 52, Ala. R. App. P., to protect Re.W.'s anonymity,
we have used initials when referring to Re.W. and her family members in
this opinion.
2
1200347
Re.W. and a male student stayed in the CrossingPoints van. Re.W. stated
that, during the short time that the others were inside the store, the male
student touched her on her breast and between her legs.
On December 17, 2019, Re.W., by and through her parents and next
friends, Ro.W. and V.W., sued Williamson in the Tuscaloosa Circuit Court.
The complaint included counts alleging negligent, wanton, and/or willful
failure to perform ministerial acts and the tort of outrage. On January 23,
2020, Williamson filed an answer to the complaint. She denied the
material allegations and asserted multiple affirmative defenses.
On May 15, 2020, Williamson filed a motion for a summary
judgment, with supporting materials. In the motion, she asserted, among
other things, that Re.W.'s claims were barred by the doctrine of State-
agent immunity. Specifically, Williamson presented evidence indicating
that, at the time of the incident, she was exercising judgment and
discretion in the supervision and education of students. She also
presented testimony from Dr. William L. Bainbridge, her expert on
educational policies and practices, who stated that he could not identify
any specific rules, regulations, or policies the CrossingPoints program, the
3
1200347
Tuscaloosa City Board of Education, or the Tuscaloosa County Board of
Education had adopted that Williamson was told to follow under the
circumstances of this case.
On May 29, 2020, Re.W. filed a response in opposition to
Williamson's motion for a summary judgment and attached additional
materials to support her response. She did not challenge Williamson's
argument that Williamson had been engaged in a function that could
entitle her to State-agent immunity. Instead, Re.W. argued that an
exception to State-agent immunity applied because, she alleged,
Williamson had "acted beyond her authority by not following established
policies and procedures containing non-discretionary duties that governed
CrossingPoints teachers and employees of the Tuscaloosa City School
Board." In her statement of facts, Re.W. included the following:
"Olivia Robinson testified that a teacher, like ... Williamson,
was required to stay with [Re.W.] 'at all times from the point
where the van was parked at a location until they left that
location.' (Def's Ex. E, O. Robinson Dep., 53:8-54:2). Teachers
and paraeducators are responsible for students until the
students leave at the end of the day. (Id., 54:3-5)."
4
1200347
However, although Re.W. referenced and purported to quote portions of
pages 53 and 54 of Olivia Robinson's deposition, she did not attach those
pages of Robinson's deposition to her response in opposition to
Williamson's motion for a summary judgment.
After conducting a hearing, the trial court entered an order that
provided, in relevant part:
"2. [Re.W.] asserted claims against ...Williamson in her
individual capacity for the negligent, wanton, and/or willful
failure to perform ministerial acts in count one of the
complaint and for the tort of outrage in count two of the
complaint. At the outset, the Court finds that the facts of this
case do not support an outrage claim in as much as there is no
evidence of any intent of ... Williamson to inflict emotional
distress upon plaintiff [Re.W.]. Furthermore, there is no
evidence that the conduct of ... Williamson was so extreme and
outrageous as to cause emotional distress so severe that no
reasonable person could be expected to endure it.
"3. Turning to the negligence claim contained in count 1
of the complaint, the Court finds at the time of the incident
made the basis of this lawsuit, ... Williamson was engaged in
educating students which entitles her to state agent immunity.
The burden then shifts to [Re.W.] to establish that ...
Williamson acted willfully, maliciously[,] fraudulently, in bad
faith, or beyond her authority. [Re.W.] failed to offer any
evidence that ... Williamson acted willfully, maliciously,
fraudulently, or in bad faith. Therefore, the only remaining
issue is whether ... Williamson acted beyond her authority
when she left [Re.W.] [in] the van with the male student.
5
1200347
"4. In addressing the issue of whether ... Williamson
acted beyond her authority, the Court reviewed the evidence
submitted by [Re.W.] to determine if ... Williamson failed to
discharge duties pursuant to detailed rules and regulations
such as check list. As the Court viewed the evidentiary
submissions of the [Re.W.] in opposition to the Motion for
Summary Judgment, the only detailed rule, regulation, or
policy which [Re.W.] can rely on is the statement in Olivia
Robinson['s] deposition ... (Def's Ex. E, O Robinson Dep.,
53:8-54:2) that a teacher like ... Williamson was required to
stay with [Re.W.] 'at all times from the point where the van
was parked at a location until they left that location.'
"5. [Williamson] contended that [Re.W.] mischaracterized
the testimony of Olivia Robinson by pointing out that Ms.
Robinson testified, 'I guess I'm confused by your question'
[Def.'s Ex. E, p. 54, line 9]. Once the question was clarified
according to [Williamson's] argument, Ms. Robinson said, 'I
don't know. There's no policy in place for that, so I guess it
depends on the teacher and the paraeducator, whoever is with
them.' [Def.'s Ex. E, p. 54, line 20.] [Williamson] then argued
that Ms. Robinson never testified that any teacher or educator
was required to stay with [Re.W.] at all times or provide
constant supervision.
"6. In the Court's view the parties are in dispute as to
whether or not [Williamson] failed to discharge duties
pursuant to detail rules or regulations which turned on
whether the testimony of Ms. Robinson should be viewed as
establishing
detail[ed]
rules
and
regulations
which
[Williamson] failed to discharge. Viewing the evidentiary
submissions of the parties in the light most favorable to
[Re.W.,] who is the non-movant, the Court for purposes of
Summary Judgment finds that by leaving [Re.W.] [in] the van
with the male student, ... Williamson acted beyond her
6
1200347
authority and violated the policy that teachers are required to
stay with [Re.W.] 'at all times from the point where the van
was parked at a location until they left that location.' For this
reason, the Court finds that ... Williamson['s] Motion for
Summary Judgment is due to be and is hereby DENIED."
This petition followed.
Standard of Review
" ' "While the general rule is that the denial of
a motion for summary judgment is not reviewable,
the exception is that the denial of a motion for
summary judgment grounded on a claim of
immunity is reviewable by petition for writ of
mandamus." Ex parte Rizk, 791 So. 2d 911, 912
(Ala. 2000). A writ of mandamus is an
extraordinary remedy available only when there is:
"(1) a clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court." Ex parte BOC
Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'
"Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003). Also,
" 'whether
review
of
the
denial
of
a
summary-judgment motion is by a petition for a
writ of mandamus or by permissive appeal, the
appellate court's standard of review remains the
same. If there is a genuine issue as to any material
fact on the question whether the movant is entitled
to immunity, then the moving party is not entitled
to a summary judgment. Rule 56, Ala. R. Civ. P.
7
1200347
In determining whether there is a [genuine issue
of] material fact on the question whether the
movant is entitled to immunity, courts, both trial
and appellate, must view the record in the light
most favorable to the nonmoving party, accord the
nonmoving
party
all
reasonable
favorable
inferences from the evidence, and resolve all
reasonable doubts against the moving party,
considering only the evidence before the trial court
at the time it denied the motion for a summary
judgment. Ex parte Rizk, 791 So. 2d 911, 912 (Ala.
2000).'
"Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002)."
Ex parte City of Montgomery, 272 So. 3d 155, 159 (Ala. 2018).
" ' "Once the [summary-judgment] movant makes a
prima facie showing that there is no genuine issue
of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to
the existence of a genuine issue of material fact.
Bass v. SouthTrust Bank of Baldwin County, 538
So. 2d 794, 797-98 (Ala. 1989); Ala. Code 1975, §
12-21-12. '[S]ubstantial evidence is evidence of
such weight and quality that fair-minded persons
in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to
be proved.' West v. Founders Life Assur. Co. of
Fla., 547 So. 2d 870, 871 (Ala. 1989)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
8
1200347
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
Discussion
Williamson argues that she is entitled to State-agent immunity and
that the trial court erred in denying her motion for a summary judgment.
Specifically, she contends that she established that, at the time of the
incident, she was engaged in a discretionary function that could entitle
her to State-agent immunity; that her expert testified that he could not
identify any specific policies, rules, or regulations that applied to her
under the circumstances of this case; and that Re.W. failed to present
substantial evidence to establish that an exception to State-agent
immunity applied under the circumstances of this case. We agree with
Williamson.
In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), the rule governing
"State-agent immunity" was restated as follows:
"A State agent shall be immune from civil liability in his
or her personal capacity when the conduct made the basis of
the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
9
1200347
"(2) exercising his or her judgment in the
administration of a department or agency of
government, including, but not limited to,
examples such as:
"(a)
making
administrative
adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring,
assigning, or supervising personnel; or
"(3) discharging duties imposed on a
department or agency by statute, rule, or
regulation, insofar as the statute, rule or
regulation prescribes the manner for performing
the duties and the State agent performs the duties
in that manner; or
"(4) exercising judgment in the enforcement
of the criminal laws of the State, including, but not
limited to, law-enforcement officers' arresting or
attempting to arrest persons[, or serving as peace
officers under circumstances entitling such officers
to immunity pursuant to § 6-5-338(a), Ala. Code
1975]; or
"(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in
releasing prisoners, counseling or releasing persons
of unsound mind, or educating students.
10
1200347
"Notwithstanding anything to the contrary in the
foregoing statement of the rule, a State agent shall not be
immune from civil liability in his or her personal capacity
"(1) when the Constitution or laws of the
United States, or the Constitution of this State, or
laws, rules, or regulations of this State enacted or
promulgated for the purpose of regulating the
activities of a governmental agency require
otherwise; or
"(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his
or
her
authority,
or
under
a
mistaken
interpretation of the law."
792 So. 2d at 405 (bracketed modification added by Hollis v. City of
Brighton, 950 So. 2d 300, 309 (Ala. 2006)). Even though Cranman was a
plurality decision, its restatement of the law as to State-agent immunity
was later adopted by this Court in Ex parte Butts, 775 So. 2d 173 (Ala.
2000). "Once it is determined that State-agent immunity applies,
State-agent immunity is withheld upon a showing that the State agent
acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her
authority. Cranman, 792 So. 2d at 405." Ex parte Bitel, 45 So. 3d 1252,
1257-58 (Ala. 2010). Also,
11
1200347
"[t]his Court has established a 'burden-shifting' process
when a party raises the defense of State-agent immunity.
Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). In
order to claim State-agent immunity, a State agent bears the
burden of demonstrating that the plaintiff's claims arise from
a function that would entitle the State agent to immunity.
Giambrone, 874 So. 2d at 1052; Ex parte Wood, 852 So. 2d 705,
709 (Ala. 2002). If the State agent makes such a showing, the
burden then shifts to the plaintiff to show that the State agent
acted willfully, maliciously, fraudulently, in bad faith, or
beyond his or her authority. Giambrone, 874 So. 2d at 1052;
Wood, 852 So. 2d at 709; Ex parte Davis, 721 So. 2d 685, 689
(Ala. 1998)."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Further,
"[o]ne of the ways in which a plaintiff can show that a State
agent acted beyond his or her authority is by proffering
evidence that the State agent failed ' "to discharge duties
pursuant to detailed rules or regulations, such as those stated
on a checklist." ' Giambrone v. Douglas, 874 So. 2d 1046, 1052
(Ala. 2003) (quoting Ex parte Butts, 775 So. 2d [173,] 178
[(Ala. 2000)])."
Ex parte Kennedy, 992 So. 2d 1276, 1282-83 (Ala. 2008). Finally,
"State-agent immunity protects agents of the State in their exercise of
discretion in educating students. We will not second-guess their
decisions." Ex parte Blankenship, 806 So. 2d 1186, 1190 (Ala. 2000).
Williamson presented evidence indicating that she was exercising
her judgment and discretion in both the supervision and the education of
12
1200347
students at the time the incident occurred. In her affidavit, she stated, in
part:
"During my tenure as a teacher, and during the time in
question, there were no detailed rules or checklists to dictate
how I supervise students; thus, I used my judgment and
discretion in supervising and educating the students of
CrossingPoints, whether those students were from the
Tuscaloosa County or Tuscaloosa City school system.
Furthermore, I exercised my judgment and discretion in
administering the CrossingPoints Program. In dealing with
[Re.W.], I acted at all times within the scope of my authority,
in good faith performance of my responsibilities, and in
compliance with all directives from my superiors. I had no
malice or ill-will towards [Re.W.] I never breached any duty
owed to [Re.W.], nor did I engage in any wanton, reckless,
negligent or outrageous conduct.
"On March 10, 2015, I followed all applicable rules and
policies of both the Tuscaloosa City Board of Education and the
CrossingPoints Program. Nothing required Ms. Burnett, me,
or other school personnel to maintain constant visual contact
with every student at every moment of the day nor would that
be possible.
"Based on my education (including my Ph.D. in special
education, obtained in 2017), training and experience, I am
familiar with the standard of care applicable to teachers,
para-educators and educators in the State of Alabama,
Tuscaloosa City School system, and the CrossingPoints
Program. I met those standards of care on March 10, 2015,
and at all times relevant to this lawsuit. At all times relevant
to the claims made in this lawsuit, I was acting within the
scope of my authority and performing official duties for the
13
1200347
Tuscaloosa City Board of Education, in compliance with the
policies, rules, regulations and procedures of the Board and in
compliance with local, state, and federal laws."
Therefore, we conclude that Williamson established that she was
performing a discretionary function that would entitle her to State-agent
immunity if no exceptions applied.
Because Williamson established that she was performing a
discretionary function that could entitle her to State-agent immunity, the
burden then shifted to Re.W. to establish that " 'one of the two categories
of exceptions to State-agent immunity recognized in Cranman is
applicable.' " Ex parte City of Montgomery, 99 So. 3d 282, 293 (Ala.
2012)(quoting Ex parte Kennedy, 992 So. 2d at 1282).
Re.W. argues that she presented credible evidence that established
that Williamson violated a specific, nondiscretionary rule. Specifically,
she contends that Olivia Robinson, a fellow teacher, testified that
"someone was required to stay with [Re.W.] 'at all times from the point
where the van was parked at a location until they left that location.' " In
her statement of facts in her response to Williamson's motion for a
summary judgment, Re.W. asserted:
14
1200347
"Olivia Robinson testified that a teacher, like ...
Williamson, was required to stay with [Re.W.] 'at all times
from the point where the van was parked at a location until
they left that location.' (Def's Ex. E, O. Robinson Dep.,
53:8-54:2). Teachers and paraeducators are responsible for
students until the students leave at the end of the day. (Id.,
54:3-5)."
Although Re.W. referenced and purported to quote portions of pages 53
and 54 of Olivia Robinson's deposition, she did not attach those pages to
her response in opposition to Williamson's motion for a summary
judgment. Also, Williamson did not attach those pages of Robinson's
deposition in support of her motion for a summary judgment. Therefore,
based on the materials before us, that purported evidence was not actually
before the trial court and could not be used as a basis for finding that
there was a rule, regulation, or policy that required Williamson to stay
with Re.W. from the time the van was parked until they left that location.
See Autauga Creek Craft House, LLC v. Brust, 315 So. 3d 614, 627 (Ala.
Civ. App. 2020)("Although Craft House referred to the answers to
interrogatories, it does not appear that it submitted those answers to the
trial court in opposition to Brust's motion for a summary judgment. It is
well settled that ' " '[m]otions and arguments of counsel are not evidence.'
15
1200347
'[S]tatements in motions are not evidence and are therefore not entitled
to evidentiary weight.' '[B]riefs submitted in support of motions are not
evidence to be considered by the Court in resolving a summary judgment
motion.' " ' Ex parte Coleman, 861 So. 2d 1080, 1084 (Ala. 2003) (quoting
Fountain Fin., Inc. v. Hines, 788 So. 2d 155, 159 (Ala. 2000)); see Ex parte
Russell, 911 So. 2d 719, 725 (Ala. Civ. App. 2005) ('The unsworn
statements, factual assertions, and arguments of counsel are not
evidence.'). Therefore, Craft House's references to answers to
interrogatories did not constitute evidence that could have demonstrated
any genuine issues of material fact."). See also Ex parte Edwards, 299
So. 3d 238, 242-43 (Ala. 2020).
Re.W. did not present any evidence other than Robinson's purported
deposition testimony to refute Williamson's testimony that "there were no
detailed rules or checklists to dictate how [she] supervise[d] students" and
that "[n]othing required Ms. Burnett, [her], or other school personnel to
maintain constant visual contact with every student at every moment of
the day nor would that be possible." In fact, the trial court specifically
stated that Robinson's testimony on pages 53 and 54 of her deposition was
16
1200347
"the only detailed rule, regulation, or policy" Re.W. could rely on to
establish that Williamson was required to stay with Re.W. " 'at all times
from the point where the van was parked at a location until they left that
location.' " Therefore, Re.W. did not present any actual evidence to
establish that there was any rule, regulation, or policy that required
Williamson to stay with Re.W. from the time the van was parked until
they left that location.2 Accordingly, Re.W. did not carry her burden of
establishing that an exception to State-agent immunity applied.
Conclusion
Because we conclude that Williamson established that, at the time
of the incident, she was performing a discretionary function, and because
we conclude that Re.W. did not present any evidence to establish that an
exception to State-agent immunity applied, we conclude that Williamson
has established that she is entitled to State-agent immunity. Accordingly,
we grant the petition for the writ of mandamus and direct the trial court
2In its order denying the motion for a summary judgment, the trial
court also found that the facts of the case do not support a claim alleging
the tort of outrage. Neither party disputes that finding on appeal.
17
1200347
to vacate its order denying Williamson's motion for a summary judgment
and to enter a summary judgment for Williamson.
PETITION GRANTED; WRIT ISSUED.
Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., dissents.
18 | September 3, 2021 |
6c9946b7-2367-4564-9a19-baa04817a482 | Jean Richey v. Wal-Mart Stores East, L.P. | N/A | 1190793 | Alabama | Alabama Supreme Court | REL: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1190793
Jean Richey v. Wal-Mart Stores East, L.P. (Appeal from Calhoun Circuit
Court: CV-19-900582).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | July 9, 2021 |
0a141d8a-abc7-480f-ae96-6eb195036cf3 | Ex parte Rashadis Lamar Nicholson. | N/A | 1200589 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200589
Ex parte Rashadis Lamar Nicholson. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Rashadis
Lamar Nicholson v. State of Alabama) (Madison Circuit Court:
CC-13-4064.60; Criminal Appeals : CR-19-0619).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
4a97488b-cadd-41a9-90d2-7c11941042eb | Ex parte John Michael Woodruff. | N/A | 1200415 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200415
Ex parte John Michael Woodruff. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: John Michael Woodruff v.
State of Alabama) (Shelby Circuit Court: CC-18-418; Criminal Appeals :
CR-19-0113).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
f31720ec-c7a4-42e2-9ef0-c4c4af4e6772 | Ex parte Darrius Chestnut. | N/A | 1200784 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200784
Ex parte Darrius Chestnut. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Darrius Chestnut v. State of
Alabama) (Mobile Circuit Court: CC-15-3362.60; Criminal Appeals :
CR-19-0904).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
4d0156b5-b575-4c34-9747-0956a92968b3 | Ex parte Marcus O. Taite. | N/A | 1200716 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200716
Ex parte Marcus O. Taite. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Marcus O. Tate v. District
Attorney Michael Jackson et al) (Clarke Circuit Court: CV-20-6; Criminal
Appeals : CR-20-0428).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
d29b1352-5f05-45ed-a257-98262f6398fd | Ex parte Clifford Montez Hinkle. | N/A | 1200672 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200672
Ex parte Clifford Montez Hinkle. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Clifford Montez Hinkle v.
State of Alabama) (Jefferson Circuit Court: CC-18-2882; Criminal Appeals :
CR-19-0944).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
04e6d8da-a161-48c7-b9fa-9021852b3d81 | Ex parte Samson Strickland. | N/A | 1200580 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200580
Ex parte Samson Strickland. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Samson Strickland v. State
of Alabama) (Jefferson Circuit Court: CC-16-3840; Criminal Appeals :
CR-19-0602).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
b13e5894-ecca-43f7-9f26-e4e1de855c74 | Ex parte Stevin Ra Dunning. | N/A | 1200648 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200648
Ex parte Stevin Ra Dunning. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Stevin Ra Dunning v. State
of Alabama) (Jefferson Circuit Court: CC-15-2289.60; Criminal Appeals :
CR-20-0162).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
74db76d1-5f65-455c-8e59-a5bba49934f6 | Ex parte P.J.E.S. | N/A | 1200631 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200631
Ex parte P.J.E.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: P.J.E.S. v. DeKalb County Department of
Human Resources) (DeKalb Juvenile Court: JU-19-24.02; Civil Appeals :
2200011).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
2a2c2a8c-e6a4-4171-9a1c-599de71ef7cb | Ex parte Rhonda Underwood. | N/A | 1200575 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200575
Ex parte Rhonda Underwood. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Rhonda Underwood v. Planet
Home Lending, LLC) (Jefferson Circuit Court: CV-17-904648; Civil Appeals
: 2190700).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
8b2e7a85-2e81-4bc6-ab33-b40074fb416f | Ex parte Christopher Chase Hall. | N/A | 1200506 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200506
Ex parte Christopher Chase Hall. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Christopher Chase Hall
v. State of Alabama) (Mobile Circuit Court: CC-16-2878.60; CC-16-2880.60;
CC-16-2881.60; CC-16-2882.60; CC-16-2883.60; Criminal Appeals :
CR-19-0735).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
72d87a8e-d19e-45b7-afc5-316bbd1b830b | Ex parte L.F. | N/A | 1200680 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200680
Ex parte L.F. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: L.F. v. Houston County Department of Human
Resources) (Houston Juvenile Court: JU-16-551.02; Civil Appeals :
2190695).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
86fc66c9-388e-4299-a77d-eab7c411a08d | Ex parte Tracy Leigh Lindsey. | N/A | 1200034 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200034
Ex parte Tracy Leigh Lindsey. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Tracy Leigh Lindsey v. State
of Alabama) (Mobile Circuit Court: CC-18-4720; Criminal Appeals :
CR-19-0365).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
6aa8866a-4f26-4663-a97a-b1cc01116ca4 | Ex parte Joseph Cornelius Anderson. | N/A | 1200668 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200668
Ex parte Joseph Cornelius Anderson. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Joseph
Cornelius Anderson v. State of Alabama) (Tuscaloosa Circuit Court:
CC-09-171.70; Criminal Appeals : CR-20-0093).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
95e1fd22-ae58-47a2-8aa2-bc3509a3595b | Ex parte Lutha James Robinson. | N/A | 1200043 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200043
Ex parte Lutha James Robinson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Lutha James Robinson v.
State of Alabama) (Madison Circuit Court: CC-17-677.60; Criminal Appeals
:
CR-19-0067).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
63d8e445-0e7f-418f-8056-4e54057b2405 | Ex parte Christopher Kip Jacobs. | N/A | 1200710 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200710
Ex parte Christopher Kip Jacobs. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Christopher Kip Jacobs v.
State of Alabama) (Covington Circuit Court: CC-17-343.71; CC-17-343.72;
Criminal Appeals : CR-20-0172).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
855f6079-51a7-4d23-8cc7-f67d1836c890 | Adams Homes, LLC v. Owners Insurance Company et al. | N/A | 1190514 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1190514
Adams Homes, LLC v. Owners Insurance Company et al. (Appeal from
Madison Circuit Court: CV-16-901792).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | July 9, 2021 |
d9ad9007-b26f-4a92-b655-26514a1b392f | Ex parte Isaac Isahas Washington. | N/A | 1190093 | Alabama | Alabama Supreme Court | REL: July 9, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1190093
____________________
Ex parte Isaac Isahas Washington
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Isaac Isahas Washington
v.
State of Alabama)
(Mobile Circuit Court, CC-07-2951.61 and CC-07-2952.61;
Court of Criminal Appeals, CR-17-1201)
MENDHEIM, Justice.
1190093
The petition for the writ of certiorari is denied.
In denying the petition for the writ of certiorari, this Court does not
wish to be understood as approving all the language, reasons, or
statements of law in the Court of Criminal Appeals' opinion. Horsley v.
Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur.
2 | July 9, 2021 |
c37d7c65-029c-4f9b-a4be-f01148d9089c | Joseph Ridgeway v. Donald Steven Millitello and State Farm Mutual Automobile Insurance Company | N/A | 1200001 | Alabama | Alabama Supreme Court | Rel: September 10, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200001
Joseph Ridgeway v. Donald Steven Millitello and State Farm Mutual
Automobile Insurance Company (Appeal from Madison Circuit Court:
CV-18-900797).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | September 10, 2021 |
9c901250-199f-4dfa-b733-ee3320cc5fa6 | Ex parte Maurice Antionne Cartwright. | N/A | 1191044 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1191044
Ex parte Maurice Antionne Cartwright. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Maurice
Antionne Cartwright v. State of Alabama) (Madison Circuit Court:
CC15-2979; Criminal Appeals :
CR-16-1166).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
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